Ark. Code Ann. § 5-2-312 (2026)

Research References

ALR.

Posttraumatic Stress Disorder (PTSD) as Defense to Murder, Assault, or other Violent Crime. 4 A.L.R.7th Art. 5 (2015).

Ark. L. Rev.

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

Recent Developments: Criminal Law: Placing Burden of Proof on Defendant to Show Issue of Insanity Found Constitutional, 33 Ark. L. Rev. 433.

Sullivan, Psychiatric Defenses in Arkansas Criminal Trials, 48 Ark. L. Rev. 439.

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

U. Ark. Little Rock L.J.

DeSimone, Survey of Criminal Law, 3 U. Ark. Little Rock L.J. 191.

Survey of Arkansas Law: Criminal Law, 4 U. Ark. Little Rock L.J. 189.

Survey of Legislation, 2001 Arkansas General Assembly, Criminal Law, 24 U. Ark. Little Rock L. Rev. 429.

Case Notes

In General.

This section, drawn from the Model Penal Code, replaces the former test of insanity in Arkansas, which was essentially the M'Naghten test. Lipscomb v. State, 271 Ark. 337, 609 S.W.2d 15 (1980).

Applicability.

This section does not apply to juveniles during the adjudication phase of a delinquency proceeding in juvenile court. K.M. v. State, 335 Ark. 85, 983 S.W.2d 93 (1998).

Although defendant raised the issue of his lack of capacity at the time of the alleged offenses due to mental disease or defect, as well as the issue of his mental retardation for purposes of applying the death penalty, these were two issues separate and distinct from the issue of capacity to stand trial. Because defendant's competency to stand trial was never in dispute, and because defendant acknowledged his competency at trial, the trial court did not err in failing to rule on defendant's competency. Miller v. State, 2010 Ark. 1, 362 S.W.3d 264 (2010), rehearing denied, — Ark. —, — S.W.3d —, 2010 Ark. LEXIS 95 (Feb. 12, 2010).

Burden of Proof.

The burden was upon the defendant to prove insanity by a preponderance of the evidence. Casat v. State, 40 Ark. 511 (1883), superseded by statute as stated in, Coleman v. State, 12 Ark. App. 214, 671 S.W.2d 221 (1984); Cavaness v. State, 43 Ark. 331 (1884); Coates v. State, 50 Ark. 330, 7 S.W. 304 (1888); Williams v. State, 50 Ark. 511, 9 S.W. 5 (1888); Bolling v. State, 54 Ark. 588, 16 S.W. 658 (1891) (decisions under prior law).

The law presumes that every man is sane and that he intends the natural consequences of his acts; and where one was charged with murder in the first degree and it was admitted that if sane he was guilty as charged and the plea of insanity was interposed in his defense, the burden was on the accused to establish his insanity by a preponderance of the evidence. Bell v. State, 120 Ark. 530, 180 S.W. 186 (1915) (decision under prior law).

The 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); Mask v. State, 314 Ark. 25, 869 S.W.2d 1 (1993).

Instruction as to burden of proof by state and defendant held proper. Andrews v. State, 265 Ark. 390, 578 S.W.2d 585 (1979).

The burden is upon the accused to establish that he was suffering from a mental disease or defect to the degree which would require him to be acquitted. Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979).

It is true that the defense of not guilty by reason of insanity placed the burden of proof of such defense upon the defendant, but because the defendant is required to affirmatively prove certain defenses, it does not follow that the state is relieved of the overall burden of proving the guilt of the accused beyond a reasonable doubt. Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979).

The burden of proof of the affirmative defense or defect is by a preponderance of the evidence, which is much less than the burden required of the state in the overall case which is that of proof beyond a reasonable doubt. Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979).

The insane delusion instruction is not in conformity with the present law, and giving it constituted reversible error. Lipscomb v. State, 271 Ark. 337, 609 S.W.2d 15 (1980).

The state is not relieved of the burden of proving beyond a reasonable doubt each element of the offense charged merely because a defendant has raised the affirmative defense of mental disease or defect under subsection (a), to this extent this section does not presuppose an admission of the act in question, and thus a defendant's privilege against self-incrimination is not violated. Gruzen v. State, 276 Ark. 149, 634 S.W.2d 92 (1982), cert. denied, Gruzen v. Arkansas, 459 U.S. 1020, 103 S. Ct. 386, 74 L. Ed. 2d 517 (1982).

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 this section and § 5-1-111(d). 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).

In a prosecution for capital felony murder, evidence the defendant was receiving Social Security checks for a mental disability was inadmissible to show lack of mental capacity, absent a showing that the standard for determining entitlement to such aid was the same as the statutory description of lack of capacity to engage in criminal misconduct. Bowden v. State, 328 Ark. 15, 940 S.W.2d 494 (1997).

A determination that an individual presents a clear and present danger to himself or others, as is required for civil commitment under § 20-47-207, is not necessarily the same as a determination that an individual lacks the capacity to form culpable intent, as is required to acquit an individual under this section. Edwards v. State, 328 Ark. 394, 943 S.W.2d 600, cert. denied, 522 U.S. 950, 118 S. Ct. 370, 139 L. Ed. 2d 288 (1997).

In a murder case, defendant failed to prove his defense of mental disease or defect because the state's expert testified that defendant showed no signs of significant cognitive impairment or active psychiatric disease. She diagnosed defendant with alcohol dependence and marijuana dependence, neither of which constituted a mental disease. Navarro v. State, 371 Ark. 179, 264 S.W.3d 530 (2007).

During an inmate's trial for murder, the jury was entitled to believe the testimony of the State's expert over the inmate's experts and to decide that the inmate had not proved the defense of mental disease or defect by a preponderance of the evidence. Kaufman v. State, 2013 Ark. 126 (2013).

Duty of Court.

Where testimony of experts differed as to the defendant's capability of assisting in his defense and understanding the nature and extent of his actions, the trial court should have made a determination of defendant's mental condition and whether or not he was competent to proceed to trial. Westbrook v. State, 265 Ark. 736, 580 S.W.2d 702 (1979).

The decision of whether to direct a verdict of acquittal is discretionary with the trial court under § 5-2-313; a directed verdict of acquittal is properly denied where there are questions of fact remaining concerning the defendant's affirmative defense of insanity under this section. Phillips v. State, 314 Ark. 531, 863 S.W.2d 309 (1993).

Evidence.

For cases discussing the opinion testimony of nonexperts, see Shaeffer v. State, 61 Ark. 241, 32 S.W. 679 (1895); Dewein v. State, 120 Ark. 302, 179 S.W. 346 (1915); Hankins v. State, 133 Ark. 38, 201 S.W. 832 (1917) (preceding decisions under prior law); Phillips v. State, 266 Ark. 883, 587 S.W.2d 83 (Ct. App. 1979).

After the evidence was all in, an expert could be asked his opinion as to the defendant's mental condition at the time of the criminal act, assuming the existence of facts which the evidence tended to prove; however, in the exercise of its discretion, the trial court could refuse to permit a medical witness to testify where the witness stated that he had practiced medicine only a short time, had never treated a mental disease, and had only studied them as far as ordinary cases were concerned. Green v. State, 64 Ark. 523, 43 S.W. 973 (1898) (decision under prior law).

Confession of accused held admissible, though he pleaded insanity, for the purpose of enabling the jury to determine his mental capacity. Ince v. State, 77 Ark. 418, 88 S.W. 818 (1905) (decision under prior law).

Where testimony of psychiatrists for state and defense differed in their conclusions on whether the defendant's capacity, the evidence was sufficient to sustain the jury's verdict of guilty. Stanley v. State, 248 Ark. 787, 454 S.W.2d 72 (1970) (decision under prior law).

There was substantial evidence to support a finding by the jury that defendant was legally responsible for her acts. Curry v. State, 272 Ark. 291, 613 S.W.2d 829 (1981); Robertson v. State, 304 Ark. 332, 802 S.W.2d 920 (1991).

Upon the evidence presented, defendant failed to prove by a preponderance of the evidence that at the time of the offenses, he was suffering from a mental disease or defect to the extent that he lacked the capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Couch v. State, 274 Ark. 29, 621 S.W.2d 694 (1981).

Although, in a prosecution for delivery of a controlled substance, a therapist confirmed that the defendant had been diagnosed as having posttraumatic stress syndrome and that she was treating him for this condition, the defendant failed to produce evidence to justify his proffered jury instruction on mental disease or defect. Briggs v. State, 18 Ark. App. 292, 715 S.W.2d 223 (1986).

Evidence of moodiness, irritability, and nervousness does not go to the substance of an instruction based on subsection (a). There must be some indication from the evidence that the defendant lacks the appreciation that sane men have of what it is they are doing and of its legal and moral consequences. Davis v. State, 293 Ark. 472, 739 S.W.2d 150 (1987).

Medical evidence on the issue of insanity is highly persuasive; however, a jury is not bound to accept opinion testimony of experts as conclusive, and it is not compelled to believe their testimony any more than the testimony of other witnesses. Even when several competent experts concur in their opinions, and no opposing expert evidence is offered, the jury is bound to decide the issue upon its own judgment. Davasher v. State, 308 Ark. 154, 823 S.W.2d 863 (1992), cert. denied, Davasher v. Arkansas, 504 U.S. 976, 112 S. Ct. 2948 (1992).

Evidence sufficient to support finding that defendant was sane and had the mental capacity necessary to perform the crime. Mask v. State, 314 Ark. 25, 869 S.W.2d 1 (1993).

While medical evidence on the issue of insanity is highly persuasive, a jury is not bound to accept opinion testimony of experts as conclusive, and it is not compelled to believe their testimony any more than the testimony of other witnesses; it is for the jury to decide whether a defendant has sustained the burden of proving insanity by a preponderance of the evidence. Burns v. State, 323 Ark. 206, 913 S.W.2d 789 (1996).

Sufficient evidence existed for the jury to find that defendant was sane and legally responsible when he committed the crimes. Burns v. State, 323 Ark. 206, 913 S.W.2d 789 (1996).

Defendant's motion for an order of acquittal, on the basis of expert testimony that he lacked the capacity to have the culpable mental state to commit the offense charged, was denied where the State's evidence raised questions of fact regarding the defendant's defense of insanity. Morgan v. State, 333 Ark. 294, 971 S.W.2d 219 (1998).

Defendant was properly found guilty of first-degree murder because she purposely caused the 80-year-old victim's death by stabbing him approximately 36 times, deliberately sought to conceal evidence, and the jury was entitled to believe the testimony of one expert over the other and to find that defendant had not proved the defense of mental disease or defect by a preponderance of the evidence. Fink v. State, 2015 Ark. 331, 469 S.W.3d 785 (2015).

Expert Testimony.

Where defendant was found guilty of first-degree murder and attempted first-degree murder, the trial court did not abuse its discretion in excluding certain expert testimony regarding defendant's capacity to form intent. The expert's report did not state that defendant lacked the capacity to form intent, only that it was impacted or impaired, and the expert also opined that defendant's psychotic disorder did not render him unable to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law. Furthermore, there was ample evidence of purposeful conduct where defendant left a bar and returned with a shotgun that he used against the victims. Edwards v. State, 2015 Ark. 377, 472 S.W.3d 479 (2015).

Where the trial court excluded expert testimony in a first-degree murder trial regarding defendant's capacity to form intent, defendant's assertion that he was denied due process by the deprivation of his only defense was not preserved for appellate review because defendant did not raise the argument to the circuit court. Edwards v. State, 2015 Ark. 377, 472 S.W.3d 479 (2015).

Ineffective Assistance of Counsel.

Trial court did not clearly err when it found that trial counsel was not ineffective for failing to request a mental evaluation before advising appellant to plead guilty; the conclusions presented in the postconviction mental evaluation established that it was unlikely that a more thorough investigation of appellant's mental-health history would have produced sufficient evidence supporting an affirmative defense or would have eliminated appellant's exposure to a possible death sentence. True v. State, 2017 Ark. 323, 532 S.W.3d 70 (2017).

Instructions.

The jury is not to be told the options available to the trial court when a defendant is found not guilty by mental defect or disease. Robertson v. State, 304 Ark. 332, 802 S.W.2d 920 (1991); Burns v. State, 323 Ark. 206, 913 S.W.2d 789 (1996).

Circuit court did not abuse its discretion in refusing to instruct the jury on defendant's mental state at the time of the offense because defendant presented no supporting evidence for the instructions; the defense's own witness opined that at the time of the crime defendant did not have a severe mental disease or defect. Cage v. State, 2017 Ark. 277, 528 S.W.3d 825 (2017).

Judicial Review.

Supreme Court, upon reviewing the evidence as to a defense of insanity, will not attempt to determine where the preponderance of the evidence lies, but will affirm the judgment if there is substantial evidence to support the verdict. Avery v. State, 271 Ark. 584, 609 S.W.2d 52 (1980).

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).

Mental Disease or Defect.

It was no defense to a crime committed by a sane person that it was done under the influence of an irresistible impulse, or by overmastering anger, or revenge, or passion. Casat v. State, 40 Ark. 511 (1883), superseded by statute as stated in, Coleman v. State, 12 Ark. App. 214, 671 S.W.2d 221 (1984); Williams v. State, 50 Ark. 511, 9 S.W. 5 (1888); Bolling v. State, 54 Ark. 588, 16 S.W. 658 (1891); Smith v. State, 55 Ark. 259, 18 S.W. 237 (1891) (preceding decisions under prior law).

A person who knew right from wrong could be so afflicted that he lost the power to choose and could not function as a free agent under some particular situation; and, if a person was incapable, because of idiocy or lunacy, of distinguishing between right and wrong, as to the particular act, at the time he committed it, he was not criminally responsible for the act. Green v. State, 64 Ark. 523, 43 S.W. 973 (1898) (decision under prior law).

Testimony showing that defendant was angered or excited when he fired the shot was not sufficient to justify the jury in finding that he was insane. Hulsey v. State, 111 Ark. 510, 164 S.W. 273 (1914) (decision under prior law).

Defendant's statement that “it's going to be all right … I'm going to plead temporary insanity … I'll get off” was evidence of calculation and even premeditation on the part of defendant and exhibited an awareness of the legal and moral consequences of his actions. Phillips v. State, 314 Ark. 531, 863 S.W.2d 309 (1993).

The performance of defendant's lawyers at the guilt phase of his state court murder trial was deficient on account of their failure to present evidence of his history on anti-psychotic drugs and the likelihood that he had stopped taking them sometime within three to seven weeks before commission of the offense. 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).

In a prosecution for capital murder, as defendant failed to move for a directed verdict on the basis of the affirmative defense of mental disease or defect, that issue was not preserved for review. Marcyniuk v. State, 2010 Ark. 257, 373 S.W.3d 243 (2010).

Appellant's convictions for second-degree murder and first-degree battery were affirmed because the jury was free to give credit to the forensic psychologist's testimony that appellant had no mental illness, or that he was able in any event to appreciate the criminality of his conduct and to conform his conduct in accordance with the law. Lands v. State, 2012 Ark. App. 616, 424 S.W.3d 390 (2012).

In a second-degree murder case, a trial court did not abuse its discretion by allowing testimony from a second doctor that personality disorders were not mental diseases in the context of this statute because testimony about what constituted a mental disease had previously been accepted; the challenged testimony simply embraced the issue of mental disease from a medical point of view, and it did not mandate a legal conclusion. Moreover, because a first doctor opined that a personality disorder was a mental disease in her report, and the report was entered into evidence, her opinion, despite being written and not oral, was evidence properly subject to rebuttal. Hajek-McClure v. State, 2014 Ark. App. 690, 450 S.W.3d 259 (2014).

Trial court, acting as the factfinder, chose to credit the testimony of a sheriff's deputy that defendant was high on methamphetamine at the time of a crime over the opinion of a doctor, who performed psychological evaluations of defendant, that defendant was suffering from a mental disease, schizoaffective disorder. The court was entitled to believe the deputy's testimony over the doctor's testimony and to decide that defendant did not prove the defense of mental disease by a preponderance of the evidence. Sharp v. State, 2019 Ark. App. 506, 588 S.W.3d 770 (2019).

Statements by Prosecutor.

Statement taken in full context with other statements, which meant that, even though the jurors might find the state proved beyond a reasonable doubt that defendant had the requisite mental culpability to commit a crime, they were then to determine whether he could conform his conduct to the requirements of the law, did not prejudice defendant. Catlett v. State, 321 Ark. 1, 900 S.W.2d 523 (1995).

Tests of Capacity.

The insanity that excused crime must have been such as to render the defendant incapable of distinguishing right from wrong, in respect to the crime committed; or, if he was conscious of the act that he was committing, and knew its consequences, that by reason of his insanity he was wrought up to a frenzy which rendered him incapable of controlling his actions. Williams v. State, 50 Ark. 511, 9 S.W. 5 (1888); Scruggs v. State, 131 Ark. 320, 198 S.W. 694 (1917) (decisions under prior law).

Whether the accused was capable of distinguishing right from wrong in the general affairs of life was not a test of his sanity. Bell v. State, 120 Ark. 530, 180 S.W. 186 (1915) (decision under prior law).

Mental capacity to know that one's acts were in violation of the law was not one of the tests of insanity. Bell v. State, 120 Ark. 530, 180 S.W. 186 (1915) (decision under prior law).

Where insanity was interposed as a defense, such defense could not avail unless it appeared from a preponderance of the evidence, first that at the time of the crime, the defendant was under such a defect of reason from disease of mind as not to know the nature and quality of the act he was doing, or, second, if he did not know it, that he did not know that he was doing what was wrong, or third, if he knew the nature and quality of the act and knew that it was wrong, that he was under such duress of mental disease as to be incapable of choosing between right and wrong as to the act done and unable, because of the disease, to resist the doing of the wrong act which act was the result solely of his mental disease. Bell v. State, 120 Ark. 530, 180 S.W. 186 (1915) (decision under prior law).

This section is complete in setting out the tests to be applied in determining if a defendant is not guilty by reason of insanity which is whether or not the defendant could (1) conform his conduct to the law or (2) appreciate the criminality of his conduct. Lipscomb v. State, 271 Ark. 337, 609 S.W.2d 15 (1980).

Withdrawal of Incompetency Defense.

Affirmative defenses can be withdrawn; however, the inherent nature of the mental defect defense, once asserted, requires the court to examine closely a defendant's ability to take his competency out of issue. Griffin v. State, 25 Ark. App. 186, 755 S.W.2d 574 (1988).

Cited: Coley v. Clinton, 635 F.2d 1364 (8th Cir. 1980); Branham v. State, 274 Ark. 109, 623 S.W.2d 1 (1981); Schock v. Thomas, 274 Ark. 493, 625 S.W.2d 521 (1981); Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984); Davies v. State, 286 Ark. 9, 688 S.W.2d 738 (1985); Wall v. State, 289 Ark. 570, 715 S.W.2d 208 (1986); Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998); Haynes v. State, 346 Ark. 388, 58 S.W.3d 336 (2001); Adams v. State, 2013 Ark. 174, 427 S.W.3d 63 (2013); Edwards v. State, 2017 Ark. 207 (2017).