When conduct constitutes an offense within the concurrent jurisdiction of this state and of the United States or another state or territory of the United States, a prosecution in any such other jurisdiction is an affirmative defense to a subsequent prosecution in this state under the following circumstances:
The first prosecution resulted in an acquittal or in a conviction as set out in § 5-1-112, and the subsequent prosecution is based on the same conduct unless:
The offense of which the defendant was formerly convicted or acquitted and the offense for which he or she is subsequently prosecuted each requires proof of a fact not required by the other offense and the law defining each offense is intended to prevent a substantially different harm or evil; or
The second offense was not consummated when the former trial began; or
The former prosecution was terminated by an acquittal or by a final order or judgment for the defendant that has not been set aside, reversed, or vacated and that required a determination inconsistent with a fact that must be established for the conviction of the offense for which the defendant is subsequently prosecuted.
Conviction or acquittal in federal court as bar to prosecution in state court for state offense based on same facts — Modern view. 97 A.L.R.5th 201.
Ark. L. Rev.
The Constitutionality of Affirmative Defenses to Criminal Charges, 29 Ark. L. Rev. 430.
U. Ark. Little Rock L. Rev.
Annual Survey of Case Law: Criminal Law, 29 U. Ark. Little Rock L. Rev. 849.
Case Notes
Applicability.
Where underlying conduct upon which the federal conviction and the Arkansas charge were based was not the same, the former jeopardy protection provided in this section did not apply. State v. McMullen, 302 Ark. 252, 789 S.W.2d 715 (1990).
Inconsistent Determinations.
Where state charge requires proof of an element not required for conviction under the federal charge, and not inconsistent with the elements required to be proved to convict on the federal charge, the defendant did not establish a double jeopardy claim under subdivision (2). Journey v. State, 261 Ark. 259, 547 S.W.2d 433 (1977).
Prosecution for Same Conduct.
Where a defendant was acquitted on a federal charge and then charged under state law, and where he had failed to establish a double jeopardy claim under § 16-85-712(b), such claim would also fail under subdivision (1) of this section. Journey v. State, 261 Ark. 259, 547 S.W.2d 433 (1977).
When the same conduct constitutes an offense within concurrent federal and state jurisdictions, a federal conviction or acquittal is an affirmative defense to a state prosecution. Bateman v. State, 265 Ark. 307, 578 S.W.2d 216 (1979).
Identical offenses under state and federal law would not be different merely because the punishments were different. Bateman v. State, 265 Ark. 307, 578 S.W.2d 216 (1979).
Defendant's acquittal of charges under 18 U.S.C.S. § 2423(a) in federal court did not operate as a bar to his statutory rape prosecution in state court as the underlying conduct upon which the federal conviction and Arkansas charge were based was not the same; a state jury's verdict that an act of statutory rape occurred in Arkansas would not necessarily be consistent with a federal jury's finding that, at the point in time when defendant transported the minor across state lines, he did not intend for the minor to engage in sexual activity. Winkle v. State, 366 Ark. 318, 235 S.W.3d 482 (2006).
Cited:
Thompson v. State, 27 Ark. App. 164, 768 S.W.2d 39 (1989); State v. Johnson, 330 Ark. 636, 956 S.W.2d 181 (1997).
Notes of Decisions
Cited in 8
cases (2 in the last 5 years), 1989–2026 · leading case: State v. Williams, 75 S.W.3d 684 (Ark. 2002).
State v. Williams, 75 S.W.3d 684 (Ark. 2002). · cites it 14דOn August 3, 2001, her counsel filed a motion to dismiss the charge, relying on Ark. Code Ann. § 5-1-114 , on the basis that she had earlier pled guilty to a federal crime based on the same conduct.”
Winkle v. State, 235 S.W.3d 482 (Ark. 2006). · cites it 7דThe question of when a former prosecution in another jurisdiction serves as a bar to a subsequent prosecution is addressed in Ark. Code Ann. § 5-1-114 (Repl. 2006), which provides as follows: When conduct constitutes an offense within the concurrent jurisdiction of this state…”
State v. Banks, 909 S.W.2d 634 (Ark. 1995). · cites it 4דThey contended that Ark. Code Ann. § 5-1-114 (1987) protected them against multiple prosecution in different jurisdictions for the same conduct.”
State v. McMullen, 789 S.W.2d 715 (Ark. 1990). · cites it 9דOn October 11, 1989, McMullen made a motion to dismiss the State’s charges predicated on Ark. Code Ann. § 5-1-114 (1987); the trial court granted the pretrial motion to dismiss, from which the State appeals.”
Amber Dawn Waterman v. State of Arkansas, 2025 Ark. 62 (Ark. 2025). · cites it 22דWaterman presents two arguments on appeal: (1) her prosecution is barred by the double jeopardy provisions of Ark. Code Ann. § 5-1-114 (Repl. 2024); and (2) article 2, section 8 of the Arkansas Constitution prohibits her prosecution.”
State v. Johnson, 956 S.W.2d 181 (Ark. 1997). · cites it 2דIn support of his argument, he cites, for the first time, Ark. Code Ann.§§ 5-1-114 (Repl. 1993) and 16-85-712(b) (1987), and maintains that they prohibit the State from prosecuting him for rape.”
Emily Grace Brinley v. State of Arkansas, 2026 Ark. App. 299 (Ark. Ct. App. 2026). · cites it 10דShe brings this interlocutory appeal from the Benton County Circuit Court’s denial of her pretrial motion to dismiss her prosecution for conspiracy to commit rape, Ark.”
Thompson v. State, 768 S.W.2d 39 (Ark. Ct. App. 1989). · cites it 2דSee also Ark. Code Ann. § 5-1-114 (1 )(A) (1987). However, such a comparison is not necessary in the case at bar.”
— Ark. Code Ann. § 5-1-114(1) — 1 case
State v. Williams, 75 S.W.3d 684 (Ark. 2002). “On August 3, 2001, her counsel filed a motion to dismiss the charge, relying on Ark. Code Ann. § 5-1-114 , on the basis that she had earlier pled guilty to a federal crime based on the same conduct.”
— Ark. Code Ann. § 5-1-114(1)(A) — 5 cases
State v. Williams, 75 S.W.3d 684 (Ark. 2002). “On August 3, 2001, her counsel filed a motion to dismiss the charge, relying on Ark. Code Ann. § 5-1-114 , on the basis that she had earlier pled guilty to a federal crime based on the same conduct.”
Winkle v. State, 235 S.W.3d 482 (Ark. 2006). “The question of when a former prosecution in another jurisdiction serves as a bar to a subsequent prosecution is addressed in Ark. Code Ann. § 5-1-114 (Repl. 2006), which provides as follows: When conduct constitutes an offense within the concurrent jurisdiction of this state…”
State v. Banks, 909 S.W.2d 634 (Ark. 1995). “They contended that Ark. Code Ann. § 5-1-114 (1987) protected them against multiple prosecution in different jurisdictions for the same conduct.”
Amber Dawn Waterman v. State of Arkansas, 2025 Ark. 62 (Ark. 2025). “Waterman presents two arguments on appeal: (1) her prosecution is barred by the double jeopardy provisions of Ark. Code Ann. § 5-1-114 (Repl. 2024); and (2) article 2, section 8 of the Arkansas Constitution prohibits her prosecution.”
Emily Grace Brinley v. State of Arkansas, 2026 Ark. App. 299 (Ark. Ct. App. 2026). “She brings this interlocutory appeal from the Benton County Circuit Court’s denial of her pretrial motion to dismiss her prosecution for conspiracy to commit rape, Ark.”
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