Arkansas Code Annotated

Ark. Code Ann. § 5-2-604 (2026)

Choice of evils

✓ current as of May 2026

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Conduct that would otherwise constitute an offense is justifiable when:
1. The conduct is necessary as an emergency measure to avoid an imminent public or private injury; and
2. According to ordinary standards of reasonableness, the desirability and urgency of avoiding the imminent public or private injury outweigh the injury sought to be prevented by the law proscribing the conduct.
Justification under this section shall not rest upon a consideration pertaining to the morality or advisability of the statute defining the offense charged.
If the actor is reckless or negligent in bringing about the situation requiring a choice of evils or in appraising the necessity for his or her conduct, the justification afforded by this section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish a culpable mental state.

History. Acts 1975, No. 280, § 504; A.S.A. 1947, § 41-504.

Research References

ALR.

Application of Defense of Necessity to Murder, 23 A.L.R.7th Art. 1 (2018).

Case Notes

In General.

The language of this section differs to some extent from that of Tentative Draft No. 8 of the Model Penal Code and is more limiting, but the basic principles of the defense are similar to those espoused by that draft. Koonce v. State, 269 Ark. 96, 598 S.W.2d 741 (1980).

Construction.

This section is to be narrowly construed and applied. Stultz v. State, 20 Ark. App. 90, 724 S.W.2d 189 (1987); Pursley v. State, 21 Ark. App. 107, 730 S.W.2d 250 (1987).

In defendant's insurance fraud case, the trial court did not engage in a statutory interpretation of this section but, instead, simply applied the statute to the evidence presented at trial; because the state's argument merely raised the issue of application and not the interpretation of a statutory provision, the state's appeal did not involve the correct and uniform administration of the criminal law and the argument was not a proper basis for an appeal by the State. State v. Hagan-Sherwin, 356 Ark. 597, 158 S.W.3d 156 (2004).

Applicability.

Justification as argued under this section does not appear to be appropriate in a charge of homicide. Peals v. State, 266 Ark. 410, 584 S.W.2d 1 (1979).

The choice of evils instruction should not be given in a homicide case when self-defense is argued by the defendant. Hart v. State, 296 Ark. 290, 756 S.W.2d 451 (1988).

Actor's Conduct.

A justification defense was unavailable under subsection (c) to parolee who knowingly and recklessly placed himself in a position where he could get into trouble. Polk v. State, 329 Ark. 174, 947 S.W.2d 758 (1997).

In a case where defendant was found guilty of being a felon in possession of a firearm, the trial court properly denied his request for a jury instruction on the “choice of evils” defense under this section because (1) although he needed money, the situation did not rise to the level of the extraordinary attendant circumstances that was required to invoke the “choice of evils” defense; and (2) there were reasonable, legal alternatives to his conduct such as having his father or another non-felon pawn the firearm. Prodell v. State, 102 Ark. App. 360, 285 S.W.3d 673 (2008).

Defendant's act of going outside with the gun and continuing interaction with the victim was sufficient evidence to reject the choice of evils defense under subdivision (a)(1) of this section and sustain his conviction for being a felon in possession of a firearm. Green v. State, 2011 Ark. App. 700 (2011).

Proof.

In order for choice of evils defense to be available, there must be proof of extraordinary attendant circumstances requiring emergency measures in order to avoid an imminent public or private injury. Pursley v. State, 21 Ark. App. 107, 730 S.W.2d 250 (1987).

Notes of Decisions

Cited in 6 cases, 1988–2017 · leading case: State v. Hagan-Sherwin, 158 S.W.3d 156 (Ark. 2004).

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State v. Hagan-Sherwin, 158 S.W.3d 156 (Ark. 2004). · cites it 6× “After reviewing the colloquy, it is clear that the trial court did not engage in a statutory interpretation of Ark.Code Ann. § 5-2-604. Instead, the trial court simply applied the statute to the evidence presented at trial.”

Whisenant v. State, 146 S.W.3d 359 (Ark. Ct. App. 2004). · cites it 6× “When she found them after the fire at her ex-husband’s parents’ house, she testified that she confiscated them, believing them to be exculpatory evidence because they would show that her ex-husband started the fire and not her.”

Hart v. State, 756 S.W.2d 451 (Ark. 1988). · cites it 2× “Finally, Hart argues that the trial judge erred when he refused to give the choice of evils instruction codified in Ark. Code Ann. § 5-2-604 (1987). The judge did instruct the jury on self-defense using AMCI 4105.”

Harrison v. State, 2017 Ark. App. 580 (Ark. Ct. App. 2017). · cites it 2× “' This defense is set forth in Arkansas Code Annotated section 5-2-604(a)(1), which provides that an offense is justifiable when the “conduct is necessary as an emergency measure to avoid an imminent public or private injury” and “[a]c-cording to ordinary standards of…”

Polk v. State, 947 S.W.2d 758 (Ark. 1997). · cites it 6× “On appeal, Polk’s sole argument is that, under Ark. Code Ann. § 5-2-604 (Repl. 1993), commonly labeled the choice-of-evils defense, he was justifiably in possession of the gun found on him when arrested, and asks that his case be remanded for a new trial.”

Prodell v. State, 285 S.W.3d 673 (Ark. Ct. App. 2008). · cites it 4× “The “choice of evils” statute is Ark. Code Ann. § 5-2-604 (Repl. 2006), which provides in pertinent part: (a) Conduct that would otherwise constitute an offense is justifiable when: (1) The conduct is necessary as an emergency measure to avoid an imminent public or private…”

— Ark. Code Ann. § 5-2-604(a)(1) — 2 cases

Harrison v. State, 2017 Ark. App. 580 (Ark. Ct. App. 2017). “' This defense is set forth in Arkansas Code Annotated section 5-2-604(a)(1), which provides that an offense is justifiable when the “conduct is necessary as an emergency measure to avoid an imminent public or private injury” and “[a]c-cording to ordinary standards of…”

Polk v. State, 947 S.W.2d 758 (Ark. 1997). “On appeal, Polk’s sole argument is that, under Ark. Code Ann. § 5-2-604 (Repl. 1993), commonly labeled the choice-of-evils defense, he was justifiably in possession of the gun found on him when arrested, and asks that his case be remanded for a new trial.”

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