Ark. Code Ann. § 5-1-111 (2026)

Research References

Ark. L. Rev.

The Constitutionality of Affirmative Defenses to Criminal Charges, 29 Ark. L. Rev. 430.

Article, Ethical and Effective Representation in Arkansas Capital Trials, 60 Ark. L. Rev. 1.

Case Notes

Constitutionality.

Requiring a criminal defendant to prove his affirmative defense by a preponderance of the evidence does not violate the due process clause of the United States Constitution.Hobgood v. State, 262 Ark. 725, 562 S.W.2d 41, cert. denied, 439 U.S. 963, 99 S. Ct. 449, 58 L. Ed. 2d 421 (1978).

Construction.

The application of § 5-1-103(d) is governed by subsection (c) of this section. Campbell v. State, 265 Ark. 77, 576 S.W.2d 938 (1979).

The requirement of proof of jurisdiction under subsection (a) is tempered by subsection (b). Dewitt v. State, 306 Ark. 559, 815 S.W.2d 942 (1991).

In defendant's insurance fraud case, the state's appeal of the trial court's instruction on entrapment by estoppel was dismissed where the state was not asking for an interpretation of the law, but rather a ruling on the application of the law to the facts of the particular case; because the state's argument merely raised the issue of application and not the interpretation of a statutory provision, the appeal did not involve the correct and uniform administration of the criminal law. State v. Hagan-Sherwin, 356 Ark. 597, 158 S.W.3d 156 (2004).

Burden of Proof.

To prevail on an insanity defense, a defendant has to prove, by a preponderance of the evidence, that at the time of the events in question, “as a result of mental disease or defect,” he lacked the capacity to “conform his conduct to the requirements of law or to appreciate the criminality of his conduct” under § 5-2-312(a) -- (see now § 5-2-301) and subsection (d) of this section. Hill v. Lockhart, 28 F.3d 832 (8th Cir. 1994), rehearing denied, — F.3d —, 1994 U.S. App. LEXIS 22021 (8th Cir. Aug. 16, 1994), cert. denied, Norris v. Hill, 513 U.S. 1102, 115 S. Ct. 778 (1995).

Capital Cases.

The burden of proof is not higher in death cases than the standard of beyond a reasonable doubt. Nooner v. State, 322 Ark. 87, 907 S.W.2d 677 (1995), cert. denied, Nooner v. Arkansas, 517 U.S. 1143, 116 S. Ct. 1436, 134 L. Ed. 2d 558 (1996).

Defenses.

Defendant had burden to prove circumstances which would excuse or justify the killing. Deatherage v. State, 194 Ark. 513, 108 S.W.2d 904 (1937); Burgy v. State, 256 Ark. 677, 509 S.W.2d 820 (1974) (preceding decisions under prior law).

It was error for the court to instruct the jury that to justify the killing the burden was on defendant to prove self-defense or any element of self-defense by a preponderance of the evidence. Mode v. State, 231 Ark. 477, 330 S.W.2d 88 (1959), cert. denied, Mode v. Arkansas, 370 U.S. 909, 82 S. Ct. 1255 (1962) (decision under prior law).

Evidence sufficient to warrant instructing the jury on the burden of proving circumstances of mitigation. Bosnick v. State, 248 Ark. 1289, 455 S.W.2d 688 (1970) (decision under prior law).

Entrapment must be proved by the defendant by a preponderance of the evidence. Spears v. State, 264 Ark. 83, 568 S.W.2d 492 (1978); Rhoades v. State, 270 Ark. 962, 607 S.W.2d 76 (1980), cert. denied, Rhoades v. Arkansas, 452 U.S. 915, 101 S. Ct. 3048 (1981); Walls v. State, 280 Ark. 291, 658 S.W.2d 362 (1983); Hill v. State, 13 Ark. App. 307, 683 S.W.2d 628 (1985); Webber v. State, 15 Ark. App. 261, 692 S.W.2d 255 (1985).

Where the evidence was in conflict on the question of an affirmative defense, it presented a question of fact for the trial court as to whether defendant had carried his burden of proof, and since the defense had not been established as a matter of law, deferment must be given to the trial court. Leeper v. State, 264 Ark. 298, 571 S.W.2d 580 (1978).

The question of preponderance is primarily one for the jury, and a judge may direct a verdict only when no fact issue exists. Campbell v. State, 265 Ark. 77, 576 S.W.2d 938 (1979).

Defense of mental disease or defect is an affirmative defense which defendant must prove by a preponderance of the evidence. Campbell v. State, 265 Ark. 77, 576 S.W.2d 938 (1979); Gruzen v. State, 267 Ark. 380, 591 S.W.2d 342 (1979), cert. denied, 449 U.S. 852, 101 S. Ct. 144, 66 L. Ed. 2d 64 (1980); Gruzen v. Arkansas, 459 U.S. 1020, 103 S. Ct. 386, 74 L. Ed. 2d 517 (1982).

The disposition of one found mentally unfit to proceed with a trial because of mental disease or defect cannot possibly be considered a defense under the Code. Campbell v. State, 265 Ark. 77, 576 S.W.2d 938 (1979).

Justification is not an affirmative defense; it becomes a defense when any evidence is offered tending to support its existence and such evidence may be introduced by either side. Peals v. State, 266 Ark. 410, 584 S.W.2d 1 (1979).

Subsection (c)(3) does not require the trial court, sua sponte, to give an instruction on an ordinary defense. Schwindling v. State, 269 Ark. 388, 602 S.W.2d 639 (1980).

The burden on the defendant to prove an affirmative defense by preponderance of the evidence does not arise until after the state has proved every element of the offense beyond a reasonable doubt. Fairchild v. State, 284 Ark. 289, 681 S.W.2d 380 (1984), cert. denied, Fairchild v. Arkansas, 471 U.S. 1111, 105 S. Ct. 2346 (1985).

Entrapment is not required to be found as a matter of law when the testimony of the accused, showing entrapment, is not rebutted by evidence presented by the state. McCaslin v. State, 298 Ark. 335, 767 S.W.2d 306 (1989).

Neither subsection (d) of this section nor § 5-2-607(a) defines justification or self defense as an affirmative defense. Patterson v. State, 306 Ark. 385, 815 S.W.2d 377 (1991).

There is no requirement in the criminal law requiring the pleading of affirmative defenses. Sumner v. State, 35 Ark. App. 203, 816 S.W.2d 623 (1991).

The trial court was incorrect in ruling that the defense should not refer to the word entrapment during the trial because entrapment had not been pled, in light of the fact that the state acknowledged it had been put on notice that the defense would be raised. Sumner v. State, 35 Ark. App. 203, 816 S.W.2d 623 (1991).

Because defendant presented evidence arguably supporting self defense or a justification defense to a charge of aggravated assault under Arkansas law, the government had to negate that defense by a preponderance of the evidence for an enhancement for using the firearm in connection with another felony offense under U.S. Sentencing Guidelines Manual § 2K2.1(b)(5) [now (b)(6)] (2005), to apply because whether circumstances negated defendant's excuse or justification was an element of the offense under § 5-1-102(5)(C), which had to be proved by the state under subdivision (a)(1) of this section, and the definition of aggravated assault expressly excluded any person acting in self-defense or the defense of a third party under § 5-13-204(c)(2). United States v. Raglin, 500 F.3d 675 (8th Cir. 2007).

Circuit court did not abuse its discretion in denying defendant's motion for acquittal based on lack of capacity because the circuit court was confronted with conflicting forensic evaluations, and the existence of conflicting proof and the consequent questions of fact that arose from the conflicts supported the circuit court's discretionary decision to deny defendant's motion for acquittal. Russell v. State, 2013 Ark. 369 (2013).

Substantial evidence existed to support a second-degree murder conviction because defendant's justification defense could have been reasonably rejected; the jury could have credited testimony indicating that defendant walked towards the victim holding a gun after being told that the girls present did not want to fight. Moody v. State, 2014 Ark. App. 538, 444 S.W.3d 389 (2014).

Evidence.

Circumstantial evidence can constitute substantial evidence. Dixon v. State, 311 Ark. 613, 846 S.W.2d 170 (1993).

There was sufficient evidence that the sexual assault against one victim occurred in 2002 and, therefore, was within the three-year statute of limitations of § 5-1-109(b)(2) where the victim testified that defendant, a minister, assaulted her while she was working for the church during the summer of 2002. Talbert v. State, 367 Ark. 262, 239 S.W.3d 504 (2006).

Instructions.

Instruction in language of former similar provision that the burden of the whole case is on the state and that when evidence is introduced either on the part of the state or the defendant which tends to justify or excuse the act of the defendant and which, in connection with the other evidence in the case, raises in the minds of the jury a reasonable doubt as to the guilt of the defendant the jury must acquit was proper. Thomas v. State, 85 Ark. 357, 108 S.W. 224 (1908) (decision under prior law).

While it was error where there was a conflict as to who committed the offense, to instruct in the language of this section, the error was not prejudicial as assuming that the offense was committed by the accused if no such construction was placed upon it by the court or counsel and the question as to who committed the offense was otherwise submitted to the jury. Easter v. State, 96 Ark. 629, 132 S.W. 924 (1910) (decision under prior law).

Instruction that burden of proving justification or excuse devolved upon the defendant unless the state's evidence showed that an offense of a lesser degree involving excuse was committed or that the accused was justified or excused in committing the offense, held proper. Turner v. State, 128 Ark. 565, 195 S.W. 5 (1917); Crews v. State, 179 Ark. 94, 14 S.W.2d 261 (1929); Hogue v. State, 194 Ark. 1089, 110 S.W.2d 11 (1937); Covey v. State, 232 Ark. 79, 334 S.W.2d 648 (1960) (preceding decisions under prior law).

Instruction in the language of former similar section, while abstract, held not prejudicial. Wilson v. State, 126 Ark. 354, 190 S.W. 441 (1916) (decision under prior law).

The giving of former section concerning burden of proving mitigation as an instruction was proper against contentions that instruction assumed the offense to have been proved and that there was no issue of justification or excuse. Trammell v. State, 193 Ark. 21, 97 S.W.2d 902 (1936) (decision under prior law).

Where there was evidence introduced by the state, which would support a conviction, it was not error for the court to instruct the jury, that the offense being proved, the burden was upon the defendant to prove mitigating circumstances to justify or excuse the homicide. Newboles v. State, 214 Ark. 240, 215 S.W.2d 285 (1948) (decision under prior law).

In a criminal case an instruction on burden of proof given in the words of former statute concerning burden of proving mitigation was sufficient. McGarrah v. State, 217 Ark. 186, 229 S.W.2d 665 (1950) (decision under prior law).

Instruction of court in conformity with the language of former section concerning circumstance of proving mitigation and as to presumption of defendant's innocence was proper. Hardin v. State, 225 Ark. 602, 284 S.W.2d 111 (1955) (decision under prior law).

It was not error for the court in a criminal case to instruct the jury in the language of former section concerning burden of proving mitigation, where the jury was also instructed to the effect that defendant was presumed innocent until found beyond a reasonable doubt to be guilty. Brown v. State, 231 Ark. 363, 329 S.W.2d 521 (1959) (decision under prior law).

Instruction in the language of former section concerning burden of proving circumstances of mitigation held not justified. Bosnick v. State, 248 Ark. 1289, 455 S.W.2d 688 (1970) (decision under prior law).

Instruction that, if the jury had a reasonable doubt as to the degree of the offense, it must give the benefit of that doubt to the defendant, and it should convict the defendant of a lesser degree of the offense, did not mislead the jury as to the burden of proof. Leonard v. State, 251 Ark. 1090, 476 S.W.2d 807 (1972) (decision under prior law).

Regardless of the trial court's mistake in describing justification or self defense as an affirmative defense, there was no reversible error because no objection was made to the instruction. Patterson v. State, 306 Ark. 385, 815 S.W.2d 377 (1991).

Jurisdiction.

Before the state is called upon to offer any evidence on the question of jurisdiction, there must be positive evidence that the offense occurred outside the jurisdiction of the court. Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978), cert. denied, Gardner v. Arkansas, 440 U.S. 911, 99 S. Ct. 1224, 59 L. Ed. 2d 460 (1979); Richards v. State, 279 Ark. 219, 650 S.W.2d 566 (1983); Graham v. State, 34 Ark. App. 126, 806 S.W.2d 32 (1991); Nicholson v. State, 319 Ark. 566, 892 S.W.2d 507 (1995).

While jurisdiction must be proven beyond a reasonable doubt at the trial level, on appeal the test is only whether there is substantial evidence to support a jury verdict. Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978), cert. denied, Gardner v. Arkansas, 440 U.S. 911, 99 S. Ct. 1224, 59 L. Ed. 2d 460 (1979).

It is not essential to a prosecution in this state that all the elements of the crime charged take place in Arkansas; rather if the requisite elements of the crime are committed in different jurisdictions, any state in which an essential part of the crime is committed may take jurisdiction. Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978), cert. denied, Gardner v. Arkansas, 440 U.S. 911, 99 S. Ct. 1224, 59 L. Ed. 2d 460 (1979); Glisson v. State, 286 Ark. 329, 692 S.W.2d 227 (1985), rehearing denied, 286 Ark. 329, 695 S.W.2d 121 (1985).

Evidence held sufficient to support the jury's finding that the offense had occurred in Arkansas. Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978), cert. denied, Gardner v. Arkansas, 440 U.S. 911, 99 S. Ct. 1224, 59 L. Ed. 2d 460 (1979).

The state is presumed to have jurisdiction. Glisson v. State, 286 Ark. 329, 692 S.W.2d 227 (1985), rehearing denied, 286 Ark. 329, 695 S.W.2d 121 (1985).

Where there was evidence before the trial court that the offense took place at least in part in Arkansas, even if there had been an affirmative showing by the defendant of lack of jurisdiction, the state's proof was sufficient to overcome it. Glisson v. State, 286 Ark. 329, 692 S.W.2d 227 (1985), rehearing denied, 286 Ark. 329, 695 S.W.2d 121 (1985).

Although the murder instrument was found in a county other than where the crime was prosecuted and a police chief who investigated the crime testified it was his opinion that the victim had been killed in that other county, but he did not state his basis for that opinion, there was no positive evidence from which a juror could say where the crime occurred; therefore, the state did not have the burden to prove that the crime occurred in the county where it was prosecuted. Dix v. State, 290 Ark. 28, 715 S.W.2d 879 (1986).

If the requisite elements of a crime are committed in different jurisdictions, any state in which an essential part of the crime is committed may take jurisdiction. Findley v. State, 307 Ark. 53, 818 S.W.2d 242 (1991).

It is not essential to a prosecution in Arkansas that all elements of the crime charged take place in Arkansas; jurisdiction can lie in this state if at least one element of the charged offense occurred in Arkansas. Graham v. State, 34 Ark. App. 126, 806 S.W.2d 32 (1991).

There was no reasonable basis to question the trial court's exercise of jurisdiction in defendant's trial for murder, where eyewitness testimony affirmatively proved where the murder occurred. Mackey v. Lockhart, 307 Ark. 321, 819 S.W.2d 702 (1991).

Defendant's territorial jurisdictional claim was dismissed where he presented no positive evidence that the offense occurred anywhere other than in the county of the circuit court in which it was filed. Cates v. State, 329 Ark. 585, 952 S.W.2d 135 (1997).

Where the state presented substantial evidence that one or more elements of appellant's felony murder offense—murder while kidnapping or attempting to kidnap his victim—occurred in Miller County, territorial jurisdiction was proper there pursuant to subsection (b) of this section. Ridling v. State, 360 Ark. 424, 203 S.W.3d 63 (2005).

Jurisdiction in Arkansas was proper for defendant's theft trial because sufficient circumstantial evidence existed to show that defendant took unauthorized control of a vehicle in West Memphis. King v. State, 361 Ark. 402, 206 S.W.3d 883 (2005), appeal dismissed, — Ark. —, — S.W.3d —, 2006 Ark. LEXIS 368 (June 15, 2006).

Defendant's contention that the evidence was insufficient to prove that the murder took place in Arkansas was rejected as, although evidence showed that the victim's body was found in Oklahoma, and there was no positive evidence presented that the crime actually occurred outside of Arkansas; the record provided ample substantial evidence that, at the very least, the premeditation and deliberation element of capital murder and kidnapping by deception occurred in Arkansas. Smith v. State, 367 Ark. 274, 239 S.W.3d 494 (2006).

Fact that a victim was unable to provide details regarding the timing and location of the rape and the evidence that contradicted her testimony as to the location of the rapes was not positive evidence that the rape occurred outside the trial court's jurisdiction under this section; the victim's testimony that the rape occurred in Siloam Springs, Arkansas was substantial evidence that the trial court had jurisdiction. Strickland v. State, 2010 Ark. App. 599, 378 S.W.3d 157 (2010), rehearing denied, — Ark. App. —, — S.W.3d —, 2010 Ark. App. LEXIS 744 (Ark. Ct. App. Oct. 27, 2010).

In a case where defendant was convicted of second-degree sexual assault, a lesser-included offense of rape, the circuit court did not err in finding that it had jurisdiction because the victim and her brother identified photographs of the trailer and the bed in the back room as the place where the sexual acts took place; there was simply no evidence that the rape occurred in Garland County, where the children were interviewed, or in any location other than the trailer where they lived with their father; and a presumption was created in favor of jurisdiction in Saline County where the charge was filed by the State as there was no positive evidence that the act occurred outside of Saline County. Lewis v. State, 2016 Ark. App. 257, 492 S.W.3d 538 (2016).

State was not required to prove jurisdiction when defendant was accused of two counts of sexual assault; there was no positive evidence that the crime occurred outside the jurisdiction of the trial court. While separate and distinct criminal conduct may have occurred in Hot Springs and Tulsa, that did not mean that affirmative proof was established that the trial court lacked jurisdiction over defendant's convictions for sexual assaults that occurred in his home. Bynum v. State, 2017 Ark. App. 41, 511 S.W.3d 860 (2017).

Defendant's lack of jurisdiction argument failed where he never presented the trial court with any affirmative evidence that the crime took place outside of the county. Bates v. State, 2017 Ark. App. 123, 516 S.W.3d 275 (2017).

Presumption.

The unexplained possession or control by a person of recently stolen property, or the acquisition by a person of property for a consideration known to be far below its reasonable value, gives rise to a presumption that he or she knows or believes that the property was stolen. Jones v. State, 20 Ark. App. 1, 722 S.W.2d 871 (1987).

Reasonable Doubt.

The burden of the case as a whole was on the state. Cogburn v. State, 76 Ark. 110, 88 S.W. 822 (1905); Tignor v. State, 76 Ark. 489, 89 S.W. 96 (1905); Petty v. State, 76 Ark. 515, 89 S.W. 465 (1905) (preceding decisions under prior law).

It was not necessary that each link in the chain of evidence be established beyond doubt; it was sufficient if all together satisfy the jury beyond a reasonable doubt of defendant's guilt. Carr v. State, 81 Ark. 589, 99 S.W. 831 (1907) (decision under prior law).

One was entitled to the benefit of a reasonable doubt not only as to his guilt, but as to the degree of the offense. Childs v. State, 98 Ark. 430, 136 S.W. 285 (1911); Walker v. State, 100 Ark. 180, 139 S.W. 1139 (1911); Scoggin v. State, 109 Ark. 510, 159 S.W. 211 (1913); Carlton v. State, 109 Ark. 516, 161 S.W. 145 (1913); Edwards v. State, 110 Ark. 590, 163 S.W. 155 (1914); Deatherage v. State, 194 Ark. 513, 108 S.W.2d 904 (1937) (preceding decisions under prior law).

Notwithstanding former section concerning burden of proving mitigation, the burden was still on the state to prove the accused's guilt of any degree of crime included in the indictment. Reynolds v. State, 186 Ark. 223, 53 S.W.2d 224 (1932) (decision under prior law).

Statute of Limitations.

Charges against defendant, including rape, were not time-barred, even under a three-year statute of limitations, because the amended information on its face alleged that the offenses occurred within the applicable time period; moreover, a victim testified that defendant touched her inappropriately in April 2011. Dowdy v. State, 2015 Ark. 35 (2015).

Venue.

Defendant's contention that the state failed to establish venue held to be without merit. Dodson v. State, 4 Ark. App. 1, 626 S.W.2d 624 (1982), cert. denied, Dodson v. Arkansas, 457 U.S. 1136, 102 S. Ct. 2966 (1982).

State was not required to put on proof that the offense charged was committed in the county and venue was presumed proper unless there was affirmative evidence to the contrary. Baggett v. State, 15 Ark. App. 113, 690 S.W.2d 362 (1985).

The state is not required to prove jurisdiction or venue unless evidence is admitted that affirmatively shows that the court lacks jurisdiction or venue unless the defendant produces evidence to dispute the propriety of the venue of the trial. Higgins v. State, 317 Ark. 555, 879 S.W.2d 424 (1994).

Cited: Long v. State, 260 Ark. 417, 542 S.W.2d 742 (1976); Langley v. State, 261 Ark. 539, 549 S.W.2d 799 (1977); Akins v. State, 264 Ark. 376, 572 S.W.2d 140 (1978); Patrick v. State, 265 Ark. 334, 576 S.W.2d 191 (1979); Andrews v. State, 265 Ark. 390, 578 S.W.2d 585 (1979); Thomas v. State, 266 Ark. 162, 583 S.W.2d 32 (1979); Hobgood v. Housewright, 698 F.2d 962 (8th Cir. 1983); Moss v. State, 280 Ark. 27, 655 S.W.2d 375 (1983); Holt v. State, 281 Ark. 210, 662 S.W.2d 822 (1984); Hickerson v. State, 282 Ark. 217, 667 S.W.2d 654 (1984); Coleman v. State, 12 Ark. App. 214, 671 S.W.2d 221 (1984); Johnson v. State, 298 Ark. 617, 770 S.W.2d 128 (1989); Lee v. State, 27 Ark. App. 198, 770 S.W.2d 148 (1989); Carle v. Burnett, 311 Ark. 477, 845 S.W.2d 7 (1993); Lindsey v. State, 54 Ark. App. 266, 925 S.W.2d 441 (1996); Renfro v. State, 331 Ark. 253, 962 S.W.2d 745 (1998); Donovan v. State, 71 Ark. App. 226, 32 S.W.3d 1 (2000); Haynes v. State, 346 Ark. 388, 58 S.W.3d 336 (2001); Peoples v. State, 2019 Ark. App. 559, 590 S.W.3d 783 (2019).