Ark. Code Ann. § 5-1-112 (2026)

Research References

Ark. L. Rev.

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

U. Ark. Little Rock L.J.

Derden, Survey of Arkansas Law: Criminal Procedure, 2 U. Ark. Little Rock L.J. 203.

Case Notes

Acquittal.

A trial ending in a hung jury is not the equivalent of acquittal for purposes of establishing a former jeopardy or collateral estoppel to bar retrial. Prince v. State, 304 Ark. 692, 805 S.W.2d 46 (1991).

While a directed verdict dismissing a charge alleged against defendant in an information acquitted him of that charge, the prosecutor was allowed to amend the information to charge a lesser-included offense, and defendant's prosecution for and conviction of that offense, in the same proceeding in which the greater charge had been alleged, did not offend double jeopardy or subsection (1) of this section. Hughes v. State, 347 Ark. 696, 66 S.W.3d 645 (2002).

Fifth Amendment and Ark. Const. Art. 2, § 8’s double jeopardy clauses did not bar defendant's retrial on capital-murder and first-degree murder charges because, although the jury forewoman announced in open court that the jury had found defendant not guilty on those charges, the jury had deadlocked on a manslaughter charge, a mistrial was declared, and there were no “findings” or “verdicts”; a trial court's declaration of a mistrial because of a hung jury was not an event that terminated the original jeopardy to which defendant was subjected, and the mere reading of the jury's verdict in open court did not constitute an acquittal. The statutory provision for what constitutes an acquittal in no way forecloses the requirement that for an acquittal to be final it must be entered of record. Blueford v. State, 2011 Ark. 8, 370 S.W.3d 496 (2011), aff'd, 566 U.S. 599, 132 S. Ct. 2044, 182 L. Ed. 2d 937 (2012).

Appeals.

If the district court finds a defendant has failed to make a colorable showing of previous jeopardy and the threat of repeated jeopardy, the filing of a notice of appeal from the denial of the double jeopardy motion does not divest the district court of jurisdiction. United States v. Brown, 926 F.2d 779 (8th Cir. 1991).

Attachment of Jeopardy.

Since a jury was never sworn to hear defendant's case, double jeopardy did not attach and the trial court did not err in denying the motion to dismiss the charge on such grounds. Smith v. State, 307 Ark. 542, 821 S.W.2d 774 (1992).

In both bench and jury trials, jeopardy attaches when the trial judge or jury hears the first witness and not until then. Tipton v. State, 331 Ark. 28, 959 S.W.2d 39 (1998).

At the beginning of defendant's rape trial, voir dire was conducted by both parties and a jury was selected but not sworn; due to a four-month delay in trial while the parties awaited the results from the crime lab, the circuit court ordered a mistrial. Because the jury had not been sworn under oath, double jeopardy did not attach under this section. Williams v. State, 371 Ark. 550, 268 S.W.3d 868 (2007).

Burden of Proof.

Since a plea of former acquittal or conviction is an affirmative defense, the burden is on the accused to sustain the plea. The accused must prove not only the former jeopardy conviction, or acquittal, but also the identity of the offenses and the jurisdiction of the court in the former trial. Prince v. State, 304 Ark. 692, 805 S.W.2d 46 (1991).

The burden is on the state to demonstrate that the state will not rely on conduct for which the defendant has already been convicted in proving the pending charge. State v. Thornton, 306 Ark. 402, 815 S.W.2d 386 (1991).

Common-Law Defenses.

The law-of-the-case defense is an affirmative defense like estoppel or res judicata. State v. Bell, 329 Ark. 422, 948 S.W.2d 557 (1997).

Consent of Defendant to Termination.

A defendant's consent to the termination of a trial can be either express or implied; if the defendant's consent is evident, demonstration of an overruling necessity is not required in order to avoid the affirmative defense of double jeopardy. Phillips v. State, 338 Ark. 209, 992 S.W.2d 86 (1999).

In a case where defendant and his son were tried together, because defendant expressly requested the trial court to grant a mistrial, that request obviated the need to demonstrate an overruling necessity in order to avoid a claim of double jeopardy, and the state constitutional double jeopardy provision did not impose an affirmative duty on the trial court to determine if the jury was divided on defendant's guilt or innocence. Turner v. State, 2013 Ark. App. 754 (2013).

Defendant requested a continuance, which was granted, then the trial court sua sponte declared a mistrial, and defense counsel acquiesced; thus, defendant expressly consented to the mistrial and the trial court correctly found that double jeopardy had not attached. Hoey v. State, 2017 Ark. App. 253, 519 S.W.3d 745 (2017).

Construction with Other Law.

Entry of the judgment and commitment order is what determines the effectiveness of a guilty plea; thus, to the extent subdivision (2) of this section conflicts with Ark. Sup. Ct. Admin. Order No. 2, it is superseded by that order and Arkansas caselaw. Bradford v. State, 351 Ark. 394, 94 S.W.3d 904 (2003).

Continuance.

A continuance is not a termination, and this section would not be applicable where the proceedings were merely continued and then resumed, not terminated and then begun anew. Daniels v. State, 12 Ark. App. 251, 674 S.W.2d 949 (1984).

Where a continuance was requested for the benefit of the defense and was granted without objection, the necessary consent to termination of the prosecution under subdivision (3) will be implied. Woods v. State, 287 Ark. 212, 697 S.W.2d 890 (1985).

Conviction.

Prosecution in circuit court, of defendant convicted by a municipal court jury of misdemeanor and felony drug offenses, barred by double jeopardy. Craig v. State, 314 Ark. 585, 863 S.W.2d 825 (1993).

Guilty Pleas.

Defendant's accepted guilty plea, along with the resulting sentence, was never memorialized as a judgment and commitment order and, thus, was never an effective judgment of conviction. Bradford v. State, 351 Ark. 394, 94 S.W.3d 904 (2003).

Mistrial.

Where defendant had ample opportunity to apprise judge that defendant was not seeking or agreeing to a mistrial, no violation of subdivision (3) of this section occurred. Rowlins v. State, 319 Ark. 323, 891 S.W.2d 56 (1995).

Where the defendant successfully moved to reconvene his trial after the court excused a juror who was related to a witness, he could not later complain that the subsequent trial was barred by double jeopardy. Schalk v. State, 63 Ark. App. 251, 977 S.W.2d 495 (1998).

Trial court did not err by not allowing defendant to present evidence at his second trial concerning his affirmative defense of double jeopardy under this section, pursuant to which he would have presented evidence of the circumstances that resulted in the mistrial at his first trial, because doing so would allow a jury to usurp an appellate court's function of reviewing the mistrial by deciding whether there was an abuse of discretion as a question of fact, rather than requiring the issue to be reviewed on appeal as a matter of law. Koster v. State, 374 Ark. 74, 286 S.W.3d 152 (2008).

Mistrial was not justified when defense counsel's opening statement purportedly changed the theory of defense in a murder trial from self defense to accident; because the court could have taken corrective measures and proceeded with trial, the mistrial was unjustified, and any subsequent prosecution was prohibited. Shelton v. State, 2009 Ark. 388, 326 S.W.3d 429 (2009).

Denial of defendant's motions to bar his retrial on the charge of first-degree murder were proper because his trial ended in a mistrial without a final verdict entered in the record, and there was no actual verdict of acquittal under subdivision (1)(B)(i) of this section. Neither the transitional jury instruction nor the jury's written status report of the vote on the lesser-included charge negated the requirements for a formal verdict and there was no merit to defendant's arguments that the jury's note reflecting its vote on the lesser-included offense of second-degree murder constituted an implicit acquittal on the charge of first-degree murder, and that entry of the jury's note into the record rendered it controlling for the purpose of jeopardy on first degree. Basham v. State, 2011 Ark. App. 384 (2011), cert. denied, 566 U.S. 1034, 132 S. Ct. 2710, 183 L. Ed. 2d 67 (2012).

Prior to retrial, a court did not err in denying defendant's motion to dismiss rape and robbery charges on double jeopardy grounds because there was ample support for the trial court's conclusion that the jury was unable to reach a verdict in the first trial; the foreperson stated on the record that the jury was deadlocked and the individual jurors all agreed. Gold v. State, 2013 Ark. 220 (2013).

Overruling Necessity.

Either a deadlocked jury or the illness of a juror is a circumstance which qualifies as “overruling necessity.” Shaw v. State, 304 Ark. 381, 802 S.W.2d 468 (1991).

Where the prosecutor had become ill and could not continue with the prosecution of defendant's trial and the trial court proceeded by accepting a deputy prosecutor, but subsequently, a conflict with one of the jurors was revealed, it was manifestly necessary for the court to order a mistrial, a second trial was not barred by double jeopardy. Green v. State, 52 Ark. App. 244, 917 S.W.2d 171 (1996).

State did not prove an overriding necessity to end a prior trial under subdivision (3) of this section to prevent a dismissal on double jeopardy grounds as a witness exceeded the trial judge's order not to tell the jury what conclusion to reach in the prior trial, but the testimony did not tell the jury what conclusion to reach; the judge's admonition cured any error or prejudice. Everetts v. State, 2011 Ark. App. 629 (2011).

Defendant's retrial did not violate double jeopardy because the circuit court did not abuse its discretion in sua sponte declaring a mistrial due to an overruling necessity, based on (1) a number of circumstances outside the control of the court and the State, including the unexpected unavailability of an interpreter for a second day of trial and a full docket the rest of the week, and (2) the court's efforts to try to complete the trial in one day. Vasquez-Ramirez v. State, 2019 Ark. App. 599, 591 S.W.3d 379 (2019).

Remand.

Where the error in prematurely dismissing the charge occurred before jeopardy attached, as there never was a determination that the state failed to prove the elements of the crime, the case was remanded rather than dismissed. State v. Thornton, 306 Ark. 402, 815 S.W.2d 386 (1991).

Separate Offenses.

Defendant's convictions for incest in one county did not prevent his prosecution for incest in another county where the second prosecution was not for the same offense committed in the first county and where the offenses in the second county were not based on the same conduct for which he was convicted in the first county. Fletcher v. State, 53 Ark. App. 135, 920 S.W.2d 42 (1996).

Cited: Bly v. State, 267 Ark. 613, 593 S.W.2d 450 (1980); Willis v. State, 299 Ark. 356, 772 S.W.2d 584 (1989); Leach v. State, 313 Ark. 80, 852 S.W.2d 116 (1993); Basura v. City of Springdale, 47 Ark. App. 66, 884 S.W.2d 629 (1994); Sherman v. State, 326 Ark. 153, 931 S.W.2d 417 (1996); Cohns v. State, 2017 Ark. App. 177, 516 S.W.3d 789 (2017).