Wicks exception in Arkansas

2026App. 260 , 688 S.W.3d 170 (refusing to address under Wicks exception to contemporaneous-objection rule Chandler’s argument that a jury instruction failed to comport with statutory language when Chandler raised no objection and had, in fact, approved of the instruction (citing Wicks v. State, 270 Ark. 781 , S.W.2d 366 (1980))).

2021The Massey court reasoned that Olson did not overrule Brandon and did not make new law because the language used in Olson reflects one of the four previously recognized exceptions to the general rule requiring preservation, which were outlined in Wicks v. State, 270 Ark. 781 , 606 S.W.2d 366 (1980) (the second Wicks exception applies “when defense counsel has no knowledge of the error and hence no opportunity to object”).

2024Anderson v. State, 353 Ark. 384 , 108 S.W.3d 592 (2003), held that the State’s impermissible shifting of the burden of proof to the defendant during voir dire fell within the third Wicks exception.

2024Anderson v. State, 353 Ark. 384 , 108 S.W.3d 592 (2003), held that the State’s impermissible shifting of the burden of proof to the defendant during voir dire fell within the third Wicks exception.

2016See, e.g., Chunestudy v. State, 2012 Ark. 222 , 408 S.W.3d 55 (holding that prosecutor’s question about defendant’s prior statement regarding whether he had had sex with his daughter while she was a minor did not fall within exception); McKenzie v. State, 362 Ark. 257 , 208 S.W.3d 173 (2005) (holding that prosecutor’s cross-examination of defendant about his mother’s alleged statement that he had been accused of a crime in Jamaica was not the sort of error that fell within third Wicks exception); Buckley v. State, 349 Ark. 53 , 76 S.W.3d 825 (2002) (holding that defendant could not raise for f

2016See, e.g., Chunestudy v. State, 2012 Ark. 222 , 408 S.W.3d 55 (holding that prosecutor’s question about defendant’s prior statement regarding whether he had had sex with his daughter while she was a minor did not fall within exception); McKenzie v. State, 362 Ark. 257 , 208 S.W.3d 173 (2005) (holding that prosecutor’s cross-examination of defendant about his mother’s alleged statement that he had been accused of a crime in Jamaica was not the sort of error that fell within third Wicks exception); Buckley v. State, 349 Ark. 53 , 76 S.W.3d 825 (2002) (holding that defendant could not raise for f

2020Our supreme court specifically rejected this argument in Buckley v. State, 349 Ark. 53, 68 , 76 S.W.3d 825, 834 (2002), when the court refused to hear an argument that the prosecutor violated the Golden Rule when the objection was not made in circuit court and held that it did not fit within any Wicks exception.

2020Our supreme court specifically rejected this argument in Buckley v. State, 349 Ark. 53, 68 , 76 S.W.3d 825, 834 (2002), when the court refused to hear an argument that the prosecutor violated the Golden Rule when the objection was not made in circuit court and held that it did not fit within any Wicks exception.

2025Goehler v. State, 2023 Ark. 186, at 5 , 678 S.W.3d 745, 749 ; Marshall v. State, 316 Ark. 753, 761 , 875 S.W.2d 814, 819 (1994).

2025Goehler v. State, 2023 Ark. 186, at 5 , 678 S.W.3d 745, 749 ; Marshall v. State, 316 Ark. 753, 761 , 875 S.W.2d 814, 819 (1994).

2025Relying on our holding in Chunestudy v. State, we have only extended the third Wicks exception to review issues of a criminal defendant’s right to a twelve-person jury, informing juries on a point of law once deliberations have begun, and statements during voir dire that shift the burden of proof. 2012 Ark. 222, at 10 , 408 S.W.3d 55 , 62–63; see also White v. State, 2023 Ark. 90, at 10 , 667 S.W.3d 533, 540 ; Douglas v. State, 2017 Ark. 70 , at 4–5, 511 S.W.3d 852, 855 .

2025Relying on our holding in Chunestudy v. State, we have only extended the third Wicks exception to review issues of a criminal defendant’s right to a twelve-person jury, informing juries on a point of law once deliberations have begun, and statements during voir dire that shift the burden of proof. 2012 Ark. 222, at 10 , 408 S.W.3d 55 , 62–63; see also White v. State, 2023 Ark. 90, at 10 , 667 S.W.3d 533, 540 ; Douglas v. State, 2017 Ark. 70 , at 4–5, 511 S.W.3d 852, 855 .

2020Given that the State informed the court of the mistake, and the court subsequently failed to act, the error here was “so flagrant and so highly prejudicial in character as to make it the duty of the court on its own motion to have instructed the jury correctly.” Rackley v. State, 371 Ark. 438, 440 , 267 S.W.3d 578, 580 (2007) (quoting Springs v. State, 368 Ark. 256, 261 , 244 S.W.3d 683, 687 (2006) (discussing the third Wicks exception)).

2020Given that the State informed the court of the mistake, and the court subsequently failed to act, the error here was “so flagrant and so highly prejudicial in character as to make it the duty of the court on its own motion to have instructed the jury correctly.” Rackley v. State, 371 Ark. 438, 440 , 267 S.W.3d 578, 580 (2007) (quoting Springs v. State, 368 Ark. 256, 261 , 244 S.W.3d 683, 687 (2006) (discussing the third Wicks exception)).

2026The White [v. State, 2023 Ark. 90, at 10 , 667 S.W.3d 533, 540 ] court held that “there is no basis for us to apply the third Wicks exception to the prosecutor’s closing argument since this does not affect the very 4 structure of the criminal trial, such as the fundamental right to a trial by jury, the presumption of innocence, and the State’s burden of proof.

2026The White [v. State, 2023 Ark. 90, at 10 , 667 S.W.3d 533, 540 ] court held that “there is no basis for us to apply the third Wicks exception to the prosecutor’s closing argument since this does not affect the very 4 structure of the criminal trial, such as the fundamental right to a trial by jury, the presumption of innocence, and the State’s burden of proof.

2021In contrast, the third Wicks exception was not applied (1) to consider possible prosecutorial errors in relation to cross-examination, Vaugh v. State, 338 Ark. 220 , 227, 992 S.W.2d 785 , 789 (1999); (2) to privileged testimony, Hale v. State, 343 Ark. 62, 82 , 31 S.W.3d 850, 862 (2000); or (3) in closing arguments, Chunestudy, 2012 Ark. 222, at 10 , 408 S.W.3d at 62 .

2021In contrast, the third Wicks exception was not applied (1) to consider possible prosecutorial errors in relation to cross-examination, Vaugh v. State, 338 Ark. 220 , 227, 992 S.W.2d 785 , 789 (1999); (2) to privileged testimony, Hale v. State, 343 Ark. 62, 82 , 31 S.W.3d 850, 862 (2000); or (3) in closing arguments, Chunestudy, 2012 Ark. 222, at 10 , 408 S.W.3d at 62 .

2025This is not a death-penalty case; therefore, Bickham’s reliance on Camargo v. State, 327 Ark. 631, 640 , 940 S.W.2d 464, 469 (1997), which was a death-penalty case to which the first Wicks exception applied, is misguided.

2025This is not a death-penalty case; therefore, Bickham’s reliance on Camargo v. State, 327 Ark. 631, 640 , 940 S.W.2d 464, 469 (1997), which was a death-penalty case to which the first Wicks exception applied, is misguided.

2025Relying on our holding in Chunestudy v. State, we have only extended the third Wicks exception to review issues of a criminal defendant’s right to a twelve-person jury, informing juries on a point of law once deliberations have begun, and statements during voir dire that shift the burden of proof. 2012 Ark. 222, at 10 , 408 S.W.3d 55 , 62–63; see also White v. State, 2023 Ark. 90, at 10 , 667 S.W.3d 533, 540 ; Douglas v. State, 2017 Ark. 70 , at 4–5, 511 S.W.3d 852, 855 .

2025Relying on our holding in Chunestudy v. State, we have only extended the third Wicks exception to review issues of a criminal defendant’s right to a twelve-person jury, informing juries on a point of law once deliberations have begun, and statements during voir dire that shift the burden of proof. 2012 Ark. 222, at 10 , 408 S.W.3d 55 , 62–63; see also White v. State, 2023 Ark. 90, at 10 , 667 S.W.3d 533, 540 ; Douglas v. State, 2017 Ark. 70 , at 4–5, 511 S.W.3d 852, 855 .

2021The third Wicks exception has been applied very rarely to matters such as (1) the right to a twelve-person jury, Grinning v. City of Pine Bluff, 322 Ark. 45, 50 , 907 S.W.2d 690, 692 (1995); (2) the right to a trial by jury, Calnan v. State, 310 Ark. 744, 749 , 841 S.W.2d 593, 596 (1992), and Winkle v. State, 310 Ark. 713 , 717–18, 841 S.W.2d 589 , 591 (1992); (3) violation of Arkansas Code Annotated section 16-89-125(e), Goff v. State, 329 Ark. 513, 525 , 953 S.W.2d 38 , 45–46 (1997); and (4) statements by a prosecutor in voir dire that have the effect of shifting the burden of proof, Anderso

2021The third Wicks exception has been applied very rarely to matters such as (1) the right to a twelve-person jury, Grinning v. City of Pine Bluff, 322 Ark. 45, 50 , 907 S.W.2d 690, 692 (1995); (2) the right to a trial by jury, Calnan v. State, 310 Ark. 744, 749 , 841 S.W.2d 593, 596 (1992), and Winkle v. State, 310 Ark. 713 , 717–18, 841 S.W.2d 589 , 591 (1992); (3) violation of Arkansas Code Annotated section 16-89-125(e), Goff v. State, 329 Ark. 513, 525 , 953 S.W.2d 38 , 45–46 (1997); and (4) statements by a prosecutor in voir dire that have the effect of shifting the burden of proof, Anderso

2024App. 215, at 9 , 427 S.W.3d 123, 129 (refusing to apply third or fourth Wicks exception when “there was a simple failure to make a contemporaneous objection at trial”). 7 Moreover, it does not go unnoticed that Newton actually agreed with the State and the circuit court’s ruling that the testimony was hearsay.

2020This precedent severely undercuts Witherspoon’s claim that Wicks must apply in the present case 2 because the alleged error impacts a “substantial right.” Moreover, “[t]he White court . . . declined to apply the fourth Wicks exception—that the evidence affected the defendant’s substantial rights—to a situation where, like here, there was a simple failure to make a contemporaneous objection at trial.” Id.

2024App. 325 , at 11–12, 633 S.W.3d at 796 ); see also Chunestudy v. State, 2012 Ark. 222, at 7 , 408 S.W.3d 55, 61 (declining to apply third Wicks exception when the prosecutor, during closing arguments, allegedly improperly commented on a defendant’s constitutional right to remain silent).

2023App. 325 , 633 S.W.3d 788 (third Wicks exception has not been applied to possible prosecutorial errors in cross-examination; privileged testimony; or closing arguments).

2021The third Wicks exception has been applied very rarely to matters such as (1) the right to a twelve-person jury, Grinning v. City of Pine Bluff, 322 Ark. 45, 50 , 907 S.W.2d 690, 692 (1995); (2) the right to a trial by jury, Calnan v. State, 310 Ark. 744, 749 , 841 S.W.2d 593, 596 (1992), and Winkle v. State, 310 Ark. 713 , 717–18, 841 S.W.2d 589 , 591 (1992); (3) violation of Arkansas Code Annotated section 16-89-125(e), Goff v. State, 329 Ark. 513, 525 , 953 S.W.2d 38 , 45–46 (1997); and (4) statements by a prosecutor in voir dire that have the effect of shifting the burden of proof, Anderso

2021The third Wicks exception has been applied very rarely to matters such as (1) the right to a twelve-person jury, Grinning v. City of Pine Bluff, 322 Ark. 45, 50 , 907 S.W.2d 690, 692 (1995); (2) the right to a trial by jury, Calnan v. State, 310 Ark. 744, 749 , 841 S.W.2d 593, 596 (1992), and Winkle v. State, 310 Ark. 713 , 717–18, 841 S.W.2d 589 , 591 (1992); (3) violation of Arkansas Code Annotated section 16-89-125(e), Goff v. State, 329 Ark. 513, 525 , 953 S.W.2d 38 , 45–46 (1997); and (4) statements by a prosecutor in voir dire that have the effect of shifting the burden of proof, Anderso

2021In contrast, the third Wicks exception was not applied (1) to consider possible prosecutorial errors in relation to cross-examination, Vaugh v. State, 338 Ark. 220 , 227, 992 S.W.2d 785 , 789 (1999); (2) to privileged testimony, Hale v. State, 343 Ark. 62, 82 , 31 S.W.3d 850, 862 (2000); or (3) in closing arguments, Chunestudy, 2012 Ark. 222, at 10 , 408 S.W.3d at 62 .

2021In contrast, the third Wicks exception was not applied (1) to consider possible prosecutorial errors in relation to cross-examination, Vaugh v. State, 338 Ark. 220 , 227, 992 S.W.2d 785 , 789 (1999); (2) to privileged testimony, Hale v. State, 343 Ark. 62, 82 , 31 S.W.3d 850, 862 (2000); or (3) in closing arguments, Chunestudy, 2012 Ark. 222, at 10 , 408 S.W.3d at 62 .

2019App. 544 , 386 S.W.3d 51 (declining to apply the third Wicks exception to the giving of an erroneous jury instruction, noting that the circuit court gave the jury instructions that it, and the parties, deemed correct).

2018App. 544 , 386 S.W.3d 51 , our court declined to extend the third Wicks exception to the giving of an erroneous jury instruction, noting that the circuit court gave the jury instructions that it, and the parties, deemed to be correct.

2003The court in Bowen v. State, 322 Ark. 483 , 911 S.W.2d 555 (1995), discussed what should be covered by the third Wicks exception.

2003The court in Bowen v. State, 322 Ark. 483 , 911 S.W.2d 555 (1995), discussed what should be covered by the third Wicks exception.

2020Given that the State informed the court of the mistake, and the court subsequently failed to act, the error here was “so flagrant and so highly prejudicial in character as to make it the duty of the court on its own motion to have instructed the jury correctly.” Rackley v. State, 371 Ark. 438, 440 , 267 S.W.3d 578, 580 (2007) (quoting Springs v. State, 368 Ark. 256, 261 , 244 S.W.3d 683, 687 (2006) (discussing the third Wicks exception)).

2020Given that the State informed the court of the mistake, and the court subsequently failed to act, the error here was “so flagrant and so highly prejudicial in character as to make it the duty of the court on its own motion to have instructed the jury correctly.” Rackley v. State, 371 Ark. 438, 440 , 267 S.W.3d 578, 580 (2007) (quoting Springs v. State, 368 Ark. 256, 261 , 244 S.W.3d 683, 687 (2006) (discussing the third Wicks exception)).

2019Id.

2019Id.

2016The fourth Wicks exception is implicated when the admission or exclusion of evidence affects a defendant’s substantial rights, but the White court quotes from Crawford v. State, 362 Ark. 301 , 208 S.W.3d 146 (2005) and explains In declining to apply the fourth Wicks exception, we held that Rule 103(d) of the Arkansas Rules of Evidence is, as the Wicks court noted, “negative, not imposing an affirmative duty” on the court.

2016The fourth Wicks exception is implicated when the admission or exclusion of evidence affects a defendant’s substantial rights, but the White court quotes from Crawford v. State, 362 Ark. 301 , 208 S.W.3d 146 (2005) and explains In declining to apply the fourth Wicks exception, we held that Rule 103(d) of the Arkansas Rules of Evidence is, as the Wicks court noted, “negative, not imposing an affirmative duty” on the court.