At the common law, offenses required proof that
the accused did an act with a criminal intent, often phrased as "willfully" or "feloniously.
Criminal intent is, consequently, a part of the crime, or an element of the offense, as defined by the legislature. As such, the prosecution is required to prove
this element of the offense with evidence sufficient to meet the "reasonable doubt" standard of proof required in criminal cases.
However, the legislature may not include a reference to a specific degree of criminal intent necessary to prove the accused's guilt in the statute defining the offense.
In this situation, the omission of a reference to a particular degree of criminal intent does not mean, however, that proof of criminal intent is not required, especially when the offense defined mirrors the type of offense which at the common law did req
The Supreme Court's reasoning in Morisette v. United States:
The Court rejected the argument that failure of the Congress to include a reference to a required level of criminal intent meant that the offense could be prosecuted without any proof of intent being required, lessening the prosecution's burden of proof.
The requirement for proof of criminal intent also focuses on...
the accused's state of mind, or intent in committing the act constituting the essential element of the offense charged and not on the perception of others as to the accused's intent, unless the prosecution proves that the accused acted with intent to caus
General intent refers to
the actor's willingness in the commission of the act which is the essential element of the offense charged
Specific intent relates to
a specific allegation of the consequence of the act: "A threatened B with the intent of placing B in fear of his life.
Strict liability offenses, which came into being with industrialization and urbanization, are typically
confined to public safety offenses, regulations designed to ensure against injury randomly suffered by members of the public, with the exception being "statutory rape.
The Arkansas Criminal Code traditionally required proof of criminal intent for
all Code-defined offenses except "violations," while other statutes defining public safety offenses could be prosecuted without proof of intent.
Following the Arkansas Supreme Court's decision in Leeka v. State, the General Assembly amended the Code to recognize that
certain offenses could be prosecuted as strict liability crimes, without proof of intent, specifically DWI based on intoxication by use of alcohol.
In Leeka, the Court had held that the Code required
proof of some degree of intent for conviction for DWI.
Despite the clear expression of the requirement for proof of criminal intent for all Code offenses prior to the amendment, the state supreme court held that sexual offenses involving minors under the
The Arkansas Criminal Code uses a hierarchy of degrees of criminal intent applicable to offenses which define the element of intent that the prosecution must prove beyond a reasonable doubt in order to carry its burden of proof. These degrees, ranging fro
(1) "PURPOSELY"
(2) "KNOWINGLY"
(3) "RECKLESSLY"
(4) "NEGLIGENTLY
PURPOSELY
when the individual intends, or it is their conscious object to cause the result
KNOWINGLY
when the individual is aware that their conduct is such that the risk of injury to another or property exists or is aware that that it is practically certain that their conduct will cause the result
RECKLESSLY
when the individual consciously disregards a substantial and unjustifiable risk
NEGLIGENTLY
the individual should be aware of a substantial and unjustifiable risk that their conduct will cause the result
The actor's level of culpability, or criminal intent, is typically proved inferentially, or circumstantially based on
their actions in the commission of the offense.
May be based on direct evidence when the actor expresses their intent in an admission or confession
Because it is not possible to ascertain from the trial record what the jury would have done had it been properly instructed, the defendant appealing the trial court's refusal to instruct on a lesser included offense�or other defensive theory supported by
does not have to demonstrate actual prejudice to obtain a reversal of conviction.
In Midgett, the ASCt held the evidence did not show that the defendant's persistent physical abuse of his son did not demonstrated that he acted purposely with premeditation and deliberation, but demonstrated that he actually only intended to abuse his ch
Therefore, the majority reduced the conviction from first degree to second degree murder based on the finding that the evidence did show that Midgett delivered a strong blow to the child with the purpose of causing serious physical injury and this blow ca
If there is direct or circumstantial evidence meeting the requirement for substantial evidence,
the jury's verdict of conviction for murder will be upheld on appeal, despite the defendant's claim of lack of intent to commit murder. Mulkey; Miskelley.
Where the trial court instructs on lesser included offenses (in Miskelley, the trial court instructed on lesser included offenses of first and second degree murder as lesser of capital murder, but denied the requested manslaughter instruction),
the trial court's refusal to instruct on manslaughter based on Miskelley's claim that he had no intent to kill did not require reversal, applying the Arkansas "skip rule."
However, the theory of manslaughter was that he killed "recklessly" a lesser mental
Where the accused kills in response to perceived threat, or provocation, but is negligent in forming that perception that they are justified in causing death in response to the threat or provocation,
the accused may be guilty of "imperfect self-defense,"�a manslaughter, rather than murder. Harshaw.
In McCoy, the intent for second degree murder is less than a purposeful commission of the greater crime�here, attempted murder�a knowing attempt to kill even though it will require
proof that the accused acted "under circumstances manifesting extreme indifference to the value of human life.
The accomplice's liability is treated as
the equivalent of the principal's guilt, a principal being the individual(s) who actually does the act essential for commission of the offense.
The intent to commit the underlying felony serves as the "criminal intent" for commission of the felony murder. An accomplice to the underlying felony is liable for
the felony murder because the accomplice shares the intent of the principal necessary for commission of the murder.
The affirmative defense for first degree felony murder additionally requires the defendant to show
he was not armed with a deadly weapon and did not know that anyone else was armed and reasonably believed that no one else involved intended to cause death or serious bodily injury.
Even if the defendant charged with capital felony murder might be acquitt
The Arkansas Criminal Code includes affirmative defenses specifically applicable to both degrees of felony murder. Again, the defendant must carry the burden of proof by
a preponderance of the evidence and the capital felony affirmative defense will only be available to the accomplice, not the principal, and requires the accused to prove that he did not commit the homicidal act or otherwise assist or encourage in its comm
The jurisdiction of a court to enforce a criminal law is based on...
the authority to regulate conduct in order to protect individuals, the community, or property from the actions of those whose behavior could inflict injury.
Authority arises from the sovereignty of the nation or state; Operates through govt and in our sys
The jurisdiction of the legal system, including the criminal law, is...
generally consistent with the territorial limitations of the nation or state in exercising power; Criminal law operates within the constitutional limitations of power possessed by the sovereign.
With respect to crimes committed outside the territorial limits or borders of the sovereign...
These offenses that result in injury to the interests of the sovereign may be subject to prosecution.
The United States may enforce laws involving commission of offenses outside its borders that will ultimately include injury to its interests within the U
The Arkansas territorial jurisdiction statute affords broad authority for enforcement of...
the state's criminal law by authorizing prosecution for activities committed outside the state that result in injury to individuals or community interests within Arkansas, or include part of an overall offense being committed within the state.
The fifty states are sovereigns, drawing their authority from state constitutions or charters, and as a result, have the power to...
Enact and enforce criminal laws; Where a criminal offense is committed over two or more states, each state has authority to resort to its own criminal law to enforce its interest in punishing the offense committed. Heath v. Alabama. They are dual sovereig
Federal regulation based on the Interstate Commerce Clause of the US Constitution is authorized:
1) To keep the channels of interstate commerce free from "immoral and injurious uses;"
2) To protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though their source is intrastate activity [roadways, rail
The enforcement of federal criminal law in the federal courts is based on two different considerations.
First, if the offense occurs on federal property�a military installation, federal courthouse or post office, involves a federal official or employee who is a victim as a result of their federal employment, for example, the conduct causing the injury or ot
The prohibition on the application of new law retroactively, a matter of constitutional concern in the United States and Arkansas Constitutions, applies to...
Matters of retroactive application of the criminal law
In order to apply the ex post facto prohibition requires...
A showing that the new law is more onerous, or imposes a greater burden on the individual, than prior law; An ameliorative law does not necessarily result in a violation.
Additionally, new law that only results in procedural changes (Beazell, authorizing joint trials for co-defendants) or evidentiary changes (Hopt, permitting testimony by felon that was previously not admissible) are not...
Subject to the prohibition, although there are cases where these distinctions have not been clearly drawn by the Supreme Courts (Thompson v. Utah, right to 12 person jury under federal law, but 8 person jury under state law�Court says D had right to 12 pe
The four categories of retroactive application of law governed by the ex post facto prohibition are:
- A law criminalizing conduct that was not criminal on the date the individual committed the act now subject to prosecution.
- A change in the law increasing the degree of the offense, or abolishing a defense that was available to the defendant on the dat
Attempts to criminalize based on characterization of individuals by class or group are likely to...
Fail to provide adequate notice required by due process considerations. Lanzetta, "gangster," "terrorist," "sociopath
Offenses based on status will likely fail when...
Based on characterization where the key factor is either beyond the individual's control, such as a genetic factor, or is an illness or condition not subject to the individual's control. Robinson, "addiction" or criminalization for leprosy, AIDS
Criminalization properly based on an "act" or "omission" committed by an individual, even if resulting from a condition or predisposition.
In Powell, alcoholism is not the offense, but being drunk in public may be criminalized. Pedophilia, a personality disorder, is not subject to criminalization, but an act consistent with the disorder may be criminalized.
Criminalization may fail for violation of...
First Amendment rights, such as political freedom�cannot criminalize being a socialist, or atheist
However, It is possible to use a status as an....
Element of an offense, such as criminal offenses based upon defendant's prior conviction for a felon: felon in possession of a firearm
The State bears the burden of proof
that the act committed by the accused caused the result that the statute seeks to prevent.
The use of racial classification in definition of criminal offenses is
Prohibited under the Fourteenth Amendment guarantee of equal protection. McLaughlin v. Florida.
Not only speech, but other political expression, is protected by the First Amendment.
The use of the American flag in an act of political protest, including the burning of the flag, is protected as a matter of free speech, even when Congress attempted to legislate to protect the flag itself, and not prohibit its use in political protest.
I
The power to criminalize is limited by...
Rights afforded individuals and protected by federal and state constitutions, such as the right to speak freely; The freedom to speak is itself limited by circumstances such as when the speech is designed or has the effect of threatening imminent acts of
Statutes that are ambiguous are to be...
Construed in favor of the individual
Statutes must be...
strictly construed (Rowland v. State - Bowie knife)
Statutes must also be clearly worded to prevent...
arbitrary enforcement. (Goguen, Kolender)
Statutes must be clearly worded to afford notice, not vague, nor overbroad in being so comprehensive that it includes...
Conduct intended to be criminal, but also encompassing legal activity. (City of Euclid, Papachristou)
Definition of criminal laws now the responsibility of...
the legislature not the courts. (Meadows)
What can support a criminal conviction?
Either direct evidence, such as eyewitness testimony or a confession or admission, or circumstantial evidence, which is drawn from reasonable inferences based on established facts
The federal constitutional requirement of due process requires
the prosecution bear the burden of proving each element of the offense charged beyond a reasonable doubt when viewed from the perspective of a rational trier of fact�whether the jury in a jury trial, or the trial judge in a bench trial.
Burden applies in
The standard of review is the approach to consideration of a determination by a lower court taken by an appellate or post-conviction court.
Typically deferential, providing that the evidence adduced at trial is viewed in the light most favorable to the verdict, resolving evidentiary conflicts to support the prevailing party.
Approach is approved in Jackson v. Virginia
The standard of proof is the hierarchy of levels of proof required to establish the necessary elements of a claim, offense or defense:
preponderance of evidence; clear and convincing evidence; reasonable doubt.
The burden of proof refers to which party has to meet the standard in an action.
The issue of proof is complicated when
there is a concurrent act that was capable of causing the result.
When there is one, or more, possible causes for the result, the problem lies in...
Establishing that the act committed by the accused was sufficient to cause the result.
If so, then even if there was another act that was sufficient to cause the result, the prosecution will have met its burden of proof; The defendant wins on this issue o
Causation may be found when the result would not have occurred but for the conduct of the defendant operating either alone or concurrently with another cause unless:
(1) The concurrent cause was clearly sufficient to produce the result; and
(2) The conduct of the defendant was clearly insufficient to produce the result.
A permissive presumption is one on which
the jury is instructed--but does not conclusively presume or mandate the conclusion or inference that can reasonably be drawn from evidence of the underlying facts. It can be rejected by the jury in any event.
A mandatory presumption is one in which
the jury may draw the conclusion from proof of the necessary predicate facts, but which may be rebutted by other evidence.
A conclusive presumption is one in which
jurors are instructed that upon finding the necessary predicate facts, that proof requires the application of the presumption. This type of presumption is not subject to rebuttal with evidence.
There are three types of presumptions that are implicated in the development of proof of commission of a criminal offense, or in proof of necessary elements of a civil cause of action or defense:
� A conclusive presumption
� A mandatory presumption
� A permissive presumption
These assumptions, or legal presumptions, may be rebutted, but unless they are,
we can rely on them in the normal course of activity.
Contraband may be possessed jointly, by more than one person. But, when there is evidence of joint occupancy of premises or a place�automobile�where more than one person is present, proof that the accused constructively or jointly possessed the contraband
the prosecution to offer independent evidence showing an affirmative link between the accused and the contraband.
In possession of contraband cases, the prosecution may rely on constructive possession of the contraband by the accused, meaning that...
if the evidence shows that he/she exercised management or control of the contraband the possession test is met even if the contraband is not in the actual possession or on the person of the accused.
The language or words used by the legislature MUST
Apply. (Bailey -"use" or "carry," not "possess")
Expression protected by the First Amendment includes a right to possess pornography in the privacy of one's home, Stanley v. Georgia, but this "right" yields to...
The State's legitimate interests in protecting children from exploitation in child pornography.
Criminalization of possession and trafficking in child pornography is designed to protect children from victimization in the creation of the objectionable mate
In Lawrence, the Court struck down state laws criminalization...
Sodomy laws threatening consenting adults with prosecution for commission of sexual acts, regardless of orientation, overruling Bowersfrom twenty years earlier.
Under Section 5-2-205 of the Arkansas Criminal Code, causation may be shown when..
The defendant's act causes the result, or acts concurrently with another cause unless the defendant's act is insufficient to cause the result.
In Burrage v. U.S., the Supreme Court found that Congress required the Government to prove..
The heroin provided to the deceased was the "but for" cause of his death, and that it was not sufficient to prove that it contributed to the victim's death, but this was based on the "but for" language used in the statute.
If the evidence establishes that the concurrent act was capable of causing the result, but the actor's conduct�act plus criminal intent�was not capable of causing the result,
the State then fails to meet its burden of proof.
Arkansas courts also use a contributing cause analysis, moreover, so that the actor's conduct may be punished if
It contributed to the result which is the subject of the statutory prohibition.
In Tackett, the deliberate ramming of the driver's vehicle was not, itself, the cause of victim's death�but it precipitated the hospitalization and compromised immunity system
Would it be up to the accused to prove that the concurrent cause was sufficient to cause the result, and also that his own act was insufficient to cause the result?
It is the State's burden, of course, to prove every element of the charge.
Arkansas state courts do not refer to the Jackson test in testing the sufficiency of evidence offered in support of a conviction, but to the substantial evidence test.
It requires that the evidence be "force enough to compel reasonable minds to reach a conclusion one way or another and that goes beyond mere speculation and conjecture.
Arkansas law requires that when the prosecution relies on the testimony of an accomplice to the crime in a felony case, that evidence
must corroborated by other evidence tending to connect the defendant or the juvenile with the commission of the offense.
When the prosecution's entire case relies on circumstantial evidence, the rule governing sufficiency requires not only a showing of substantial evidence warranting the conclusion that the accused is guilty, but also requires that the evidence be inconsist
In other words, if you have two equally reasonable conclusions as to what occurred, this merely gives rise to a suspicion of guilt, which is not enough to support a conviction
Because the actor's intent is almost always proved inferentially, or circumstantially�absent a confession�the circumstantial evidence rule for sufficiency only applies when...
The prosecution's entire case is circumstantial; A case resting on a combination of circumstantial and direct evidence does not require application of the rule.
The legal system, like the rest of life, operates with reliance on presumptions, or assumptions that may reasonably be drawn from a series of related facts.
A presumption is an "assumption that something is true." http://dictionary.reference.com/browse/presumption.
In the legal system, these assumptions that have a recognized legal effect are typically referenced as "presumptions." Some are general:
all individuals are innocent until guilt is established beyond a reasonable doubt;
all individuals are sane, or competent to be tried, until this status is rebutted by evidence;
all persons are competent to testify
Other presumptions are truly "legal" in the sense that their use or significance will apply to the process to making legal determinations arising in the course of litigation.
These work to permit an inference to be drawn from evidence of the existence of underlying which, once proved, lead to an acceptable inference that a conclusion or third fact may be correct.
Conclusive and mandatory presumptions are not permitted in criminal prosecutions because
the former lessens the prosecution's burden of proof by eliminating the requirement that it actually prove the presumed fact�or conclusion from the proved facts�beyond a reasonable doubt.
Arkansas law provides that all presumptions upon which the jury may be instructed must be
Permissible, affording the jury the option of rejecting the presumed fact to require that fact or conclusion be proved beyond a reasonable doubt based on the evidence.
The permissive presumption must be based on
a reasonable conclusion that can be drawn logically from a sequence of facts that are proved in order to be constitutionally sound. Leary
The mandatory presumption impermissibly shifts the burden of proof to the defense by
requiring the accused to disprove the presumed fact or conclusion by offering evidence (which often may only be satisfied by their own testimony�being compelled in a sense, a violation of the Fifth Amendment�particularly when relating to intent or knowled
If the statute requires proof that the actor acted knowingly,
proof that she acted purposely will establish culpability.
If a statute requires proof of recklessness,
proof that the accused acted knowingly or purposely will establish guilt.
If the statute requires proof that the actor acted with criminal negligence,
proof that he acted recklessly, knowingly, or purposely will support conviction.
A statute defining an offense may not include a particular culpable mental state, but proof of criminal intent will then
be sufficient if the evidence shows the accused acted purposely, knowingly, or recklessly.
The doctrine of transferred intent applies when
an accused acts with a specific intent to cause a result, but due to some error or intervening factor, actually causes the intended result, but to an unintended victim�A caused the death of C while intending to cause the death of B.
If the defendant acts with the purpose of causing death and does cause death,
the evidence will satisfy the proof required for first degree murder.
Factors that may be considered in determining whether the accused acted with intent to commit any degree of murder:
Evidence of use of a deadly weapon
the manner of causing death
concealment of the crime or flight from the scene
Capital murder may be based on commission of a felony in which an individual is killed under circumstances
manifesting extreme indifference to the value of human life, or purposeful killing with premeditation and deliberation.
The additional requirement of proof of premeditation and deliberation requires that
the accused have a moment to reflect on his action, but still acts to kill. Ford v. State.
The additional intent required for intentional capital murder phrased in terms of premeditation and deliberation requires only
that the actor have an opportunity to consider his actions in committing the homicidal act, and proceeding, rather than deciding not to commit the act.
The relative degrees of criminal intent, or culpable mental states, are reflected in the Arkansas homicide statute:
with intentional capital murder requiring purposeful action done with premeditation and deliberation
intentional first degree murder done purposefully
second degree murder based on an act knowingly done
manslaughter, which may be committed recklessly
crim
Under Arkansas law, the refusal of the trial court to instruct on a lesser-included offense raised by the evidence will require
reversal.
When the evidence would rationally support an acquittal on the greater offense and conviction on the lesser,
the jury may rest a decision for conviction on the lesser degree of the offense charged.
There must be some evidence on which the jury could rationally acquit on the greater offense and convict on the lesser in order to warrant instruction on the lesser.
Because an offense or the degree of an offense may be determined by the degree of intent or culpability demonstrated by the act,
evidence sufficient to provide the jury with a rational basis for finding that the same act actually reflected a lesser degree of culpability, the evidence may afford the defendant a basis for requesting an instruction on a lesser offense�lesser-included
An accomplice may renounce their involvement in the crime, or abandon, it and claim an affirmative defense�requiring the accused to prove renunciation by a preponderance of the evidence�if:
The defendant terminates his or her complicity prior to the commission of the offense and:
(1) Wholly deprives his or her complicity of effectiveness in the commission of the offense;
(2) Gives timely warning to an appropriate law enforcement authority; o
Capital felony murder limits
the death or life without parole sentencing option to those who commit statutorily designated felonies that result in an otherwise unintended death of an individual, such as arson, burglary, robbery, rape, or the aggravated forms of these offenses, terror
Often, accomplice liability in the commission of an underlying felony will result in
a felony murder, or capital felony murder, charge when an accomplice causes death of another person in the process of committing or attempting to commit the felony, or in flight from the scene of the crime.
The felony murder rule permits
prosecution for capital felony murder or first degree felony murder for a person whose act in committing a felony results in the death of another person under circumstances reflecting extreme indifference to the value of human life.
The fact that others may not be subject to prosecution, or who have themselves been acquitted or not charged (having made an agreement to testify for the prosecution) does not
relieve the individual charged as an accomplice of culpability.
There are statutory limitations on who may be considered an accomplice, such as
a law enforcement officer acted in the scope of duty
someone who cannot be convicted of the target offense because they are not susceptible to prosecution (a child), because they have immunity from prosecution for some reason, or would be unable to commit
An accomplice is
anyone who aids or facilitates the commission of an offense, or who has a legal duty to prevent someone else from committing an offense, fails to do so.
Comes into play when the target offense is completed, or when there is an attempt to commit the target
Under Arkansas law there are three different approaches in demonstrating a lesser-included offense:
1) The elements test, which an offense containing all the elements of a greater offense is a lesser offense
2) An attempt, in which the actor intends to commit an offense and takes a substantial step toward completion of the offense, but fails to complete
Inchoate offenses are charged when
the accused engages in conduct that basically constitute the preliminary steps in the process of committing a target, or principal offense.
In the case of attempt, the target offense is not completed. But with respect to conspiracy and solicitation, the inchoate offense is committed whether the target offense is completed or not. Thus, an attempt to commit the target offense; a conspiracy to
subject the individual involved to prosecution and conviction, even though the target offense is never completed because inchoate offenses are offenses apart from the target offense.
The Arkansas Criminal Code provides that when the target offense is committed, an accomplice in its commission is
equally liable with others involved�to the extent of his culpability or criminal intent with respect to the commission of the offense.
In theory, an accomplice who intends only to assist in commission or encourage commission of a robbery, for instance, wo
Punishment imposed for conviction of an inchoate offense is
one degree less than would be statutorily authorized for the completed target offense.
If the punishment range for the target offense is Class A felony, the punishment for conviction for the inchoate offense committed when the target offense is not comple
Under Arkansas law, one cannot be convicted of
both the target offense and a inchoate offense in which the target offense is the intended subject, nor can one be convicted of more than one inchoate offense arising from the intended commission of a single target offense.
Where there is a conspiracy to
The inchoate offense statutes are complicated by the recognition that
an individual might abandon and renounce their involvement in the attempt, conspiracy or solicitation relating to the target offense.
The affirmative defenses set out in the Criminal Code always require that the abandonment and renunciation be voluntary, not the result of
the police discovering the plan or frustrating it by preventing it based on a factor other than being warned by the participant.
Inchoate offenses contemplate liability even when others involved in the scheme to commit the target offense would not be themselves liable because of an
immunity such as their status as undercover law enforcement agent or because they are a victim, or too young to be criminally liable.
Typically, abandonment and renunciation requires the accused to prove the affirmative defense by a preponderance of the evidence that will show
their action prevented the target offense from happening, or that they took steps to prevent it from happening, gave timely notice to law enforcement to permit the police to prevent it from happening, or otherwise acted to prevent its commission.
Renunciation of the inchoate offense is an affirmative defense under the statutes governing each inchoate offense, meaning
the accused must prove the affirmative defense by a preponderance of the evidence.
There is a general affirmative defense to any inchoate offense that
the conduct was inherently unlikely to result in commission of an offense or that the conduct would pose a public danger warranting prosecution.
An attempt requires
proof that the accused intended the commission of the target offense and took a substantial step toward its completion� a step strongly corroborative of that intent�to complete the target offense.
Example: driving from Houston to NLR alone is not strongly
Assisting someone who attempts to commit an offense may result in
prosecution for complicity and there is no defense based on the fact that the other person did not actually attempt the offense, or that it was not factually possible for the offense to be committed�assisting someone to obtain an illegal abortion still re
The affirmative defense of abandonment may result in
acquittal if the person attempting the offense abandons voluntarily and completely, resulting in the offense not being committed. But an accomplice may still be guilty of complicity if they do not themselves abandon and renouncement their involvement.
The individual charged with complicity may assert the affirmative defense if
their withdrawal prevents completion of the offense; they give timely notice to law enforcement; or otherwise make a substantial effort to prevent commission of the offense.
The accused convicted of an attempt, an inchoate offense, is punished
less severely than had the target offense been committed.
If the defendant charged with conspiracy or solicitation may be convicted of either of these inchoate offenses whether the target offense is completed or not because
the inchoate offenses have been committed regardless of the result with respect to the target offense.
Under Arkansas law, it is a defense to conspiracy or solicitation that
the individual is a victim of the offense, or their participation is incidental, but necessary to commission of the offense, such that a pregnant woman is not liable for procuring an illegal abortion.
But it is not a defense that another conspirator is...
immune from liability (undercover officer)
the object of the conspiracy does not hold the status necessary for commission of the crime (bribery of prospective juror not chosen to serve on jury)
that another person cannot be liable because they do not know
Conspiracy involves
an agreement among more than one person to commit the target offense and an overt act by any of the conspirators in furtherance of the goal of the conspiracy.
There may be multiple conspiracies.
Under federal law, an individual may be convicted of the target offense and conspiracy to commit it. Under Arkansas law, however, the accused cannot be convicted of both
the target offense and conspiracy to commit the target offense.
The agreement need not be proved by direct evidence of the agreement to commit the target offense, but may be established by circumstantial evidence�it is enough to show that actors engaged i
In the commission of the conspiracy, each person involved is responsible for
acts committed by the others in the sense that the accused could be accused of conspiring with others whom the actor may not even know in the commission of the conspiracy.
Arkansas law recognizes an affirmative defense for those who terminate their involvement in the conspiracy and as a result,
thwart the success of the conspiracy reflect a complete and voluntary renunciation;
or terminated their participation in the conspirator and gave a timely warning to law enforcement or otherwise made a substantial effort to prevent the commission of the o
Solicitation involves
hiring or inducing another person to commit a target offense;
to attempt to commit a target offense;
cause the result specified for commission of the target offense;
cause another person to assist in commission of the target offense or an attempt to commi
The affirmative defense for solicitation, however, requires
the commission of target offense be prevented. Short of prevention, a good faith effort to prevent its commission will not be sufficient to afford the defendant the affirmative defense.
An affirmative defense in Arkansas law is one defined as
it is an affirmative defense"� in the Criminal Code or a statute not included in the Code and requires the defendant to prove the elements of the defense by a preponderance of the evidence.
Does not relieve the prosecution of its burden to prove all elem
There are at least three basic types of affirmative defenses recognized in the Criminal Code:
1) General affirmative defenses that apply to any offense, such as insanity, entrapment, or duress
2) Affirmative defenses that relate to the theory of culpability on which the accused stands charged, such as accomplice liability or liability for commissi
Statutory defenses are indicated in the Code by the phrase:
it is a defense" and may relate to any offense defined in the Code or a non-Code statutory provision.
Defenses may also relate to other defensive theories, such as alibi, that are not defined in the Code, by which will provide a basis for challenging the
A "defense" supported by evidence on all elements included in its definition requires only that
the evidence raise as reasonable doubt as to the accused's guilt and the prosecution must always carry its burden of proving the offense was committed by the accused beyond a reasonable doubt.
The evidence supporting the elements of the defense may come f
When either an affirmative defense or a statutory defense or non-statutory defense is supported by evidence of each element of the affirmative defense or defense, the accused is entitled to
a jury instruction on the theory relied upon by the accused; Failure to instruct the jury upon timely and proper request requires reversal of the conviction.
Mistake of fact is a defense when
defined by the statute defining the offense, or in the assertion of a justification for the accused's action, typically in matters of self-defense.
In the latter case, if the accused is reckless or negligent in forming the belief that deadly force or forc
Mistake of law is an affirmative defense under the Code when
the accused, in good faith, relied on a statute or other enactment; recent judicial decision of the highest court to consider an issue; or a statement or interpretation by the state official or agency charged with the interpretation or administration of t
Insanity and incompetence are different legal concepts that both arise from mental impairment suffered by an individual alleged to have committed a crime.
Insanity, or lack of capacity, as used in the Arkansas Criminal Code, refers to...
the accused's state of mind at the time of the offense and is designated an affirmative defense under the Code.
Incompetence/incompetency�lack of fitness to proceed under the Arkansas Criminal Code�refers to...
the accused's mental state at the time of trial.
Both of these concepts are applied with respect to the definition of "mental disease or defect" in the Code, which includes three different descriptions of the mental impairment that may qualify when issues of fitness or sanity arise. It includes:
substantial disorders of "thought, mood, perception, orientation, or memory that grossly impairs judgment, behavior, capacity to recognize reality, or ability to meet the ordinary demands of life"�serious or severe mental illnesses
intellectual disability
Not included in the definition of mental disease or defect:
disorder reflected only in repeated antisocial or criminal conduct; intoxication based on use of drugs or alcohol; addiction to drugs or alcohol.
Lack of fitness, or incompetency, is caused by
the existence of a mental disease or defect that renders an individual charged with commission of an offense that compromises their ability to understand the nature of the criminal proceedings or prevents the accused from assisting counsel in preparing or
Insanity�lack of criminal responsibility under Arkansas law--results from
the existence of a mental disease or defect at the time the offense was committed which caused the accused to be unable to conform their behavior to the requirements of law, or unable to appreciate the criminality of their conduct.
These different theorie
Insanity is not a matter of procedural due process, however, and the states and Congress are not bound to recognize any particular theory of insanity, or to afford the defendant the defense at all. Clark v. Arizona.
A jurisdiction may require the defendan
Arkansas requires the accused to prove this affirmative defense by a preponderance of the evidence, while the federal insanity defense requires the defendant to prove insanity by clear and convincing evidence and only recognizes the inability to distingui
The prosecution must prove that the accused pleading insanity committed all elements of the offense beyond a reasonable doubt
the defendant does not admit that they committed the offense by pleading insanity. Gruzen v. State
If the defendant wins on lack of criminal responsibility, she will not necessarily be released because...
if the crime involved injury to another person or property, she will likely be committed to state hospital.
If the state hospital finds that she remains a threat based on her mental state, she will remain custody until the state hospital staff and directo
The defendant acquitted by reason of lack of criminal responsibility can actually be confined in
the state mental health system for longer than the prison term that would have been posed if convicted of the offense. Jones v. U.S.
Under Arkansas law, the trial court can acquit the defendant who suffers from mental illness or defect on the basis of
the report of evaluating mental health experts at state hospital, and will do so in some cases, even do so when the defendant is not competent to plead the affirmative defense of lack of criminal responsibility.
Under federal law, following common law practice, voluntary intoxication is available as a defense to
a crime requiring proof of specific intent or purpose to commit another offense as an element of the charge.
For instance, an attempt requires proof of an intent or purpose to commit another offense, such as when an individual attempts to commit a burglar
In some jurisdictions, voluntary intoxication may serve as a defensive theory designed to
reduce the defendant's culpability based on a reduced degree of criminal intent.
In Jackson v. Virginia, the defendant claimed he was so intoxicated he did not have the specific intent to commit a first degree murder. His defense was unsuccessful, but had
Generally, voluntary intoxication does not serve as a defensive theory or partial defensive theory to any offense under Arkansas law.
The decision by a state not to permit an accused to either claim a defense to the charge or a partial defense, so that the accused might defend against a higher degree of offense based on impairment and accept conviction on a lesser-included offense does
Although an intoxicated person may not be able to act with the degree of criminal intent required for commission of the offense charged, Arkansas law precludes
reliance on voluntary intoxication as a defense based on lack of intent.
Intoxication is excluded from the definition of mental disease or defect that is included in
Section 5-2-301(6) of the Arkansas Criminal Code.
Involuntary intoxication is recognized as an affirmative defense under Arkansas law, but there are strict limitations on use of this affirmative defense.
The evidence would have to show that the accused relying on involuntary intoxication actually met either of the theories of insanity under Arkansas law.
As a result of involuntary intoxication by use of alcohol or drugs, the accused would have to prove by
Further, when the accused voluntarily introduced a substance into the body and knew or should have known the tendency of the substance to produce intoxication,
that act is defined as voluntary intoxication and the affirmative defense will not provide a defense.
The Arkansas Criminal Code provides that the accused who suffers from a mental disease or defect, as defined in the Code, but who may not have been insane at the time of the commission of the offense, may
offer evidence of the impairment in order to show that they did not act with the culpable mental state required to prove the criminal intent element of the offense charged.
Not favored by the Arkansas Supreme Court, as its decisions restricting use of exp
An accused able to offer proof that their ability to form the necessary degree of criminal intent required for commission of the offense charged has been compromised by mental disease or defect would arguably be entitled to an acquittal if
the evidence raised a reasonable doubt for the trier of fact with respect to the intent element of the offense�or more likely, conviction on a lesser offense. The accused would not have to prove lack of criminal intent due to the impairment by a preponder
Evidence of mental disease or defect offered to contest proof of the accused's criminal intent would likely serve to
reduce liability for offenses charged to justify instruction on lesser-included offenses in some cases.
Particularly important with respect to higher degrees of offenses involving higher degrees of culpability, or specific intent, such that the impaired d
The Arkansas Supreme Court has held that an expert witness may not testify that the accused did not act with the required criminal intent necessary to prove an element of the offense charged, while recognizing that an expert may testify
that in their opinion, the accused was insane at the time of the offense. Stewart.
The expert testimony of impairment of the accused's capacity to form a required mental state is admissible, but that the jury decides the issue of proof of criminal intent
The most important theory for justification for conduct otherwise constituting a criminal offense is self defense or defense of others or property. Remember that the accused may raise the defense to justify
use of force or deadly force to defend another person, even if they themselves are not personally threatened.
Because this is a statutory defense, the defendant's only obligation in order to get an instruction on justification is to show that each element
Reasonable belief: The defense of self and others has three basic elements:
(viewed from the perspective of the individual who responds with force)
1) the individual who employs force against another must be responding to the "use or imminent use of unlawful physical force" against them or another person
2) the actor must reasonably believe that use of physical force is necessary for their defense
3)
Provocation; aggressor: The justification defense is not available if
the actor provokes the use of force by another, essentially becoming an aggressor.
But, once the actor provoking another withdraws from the encounter�or tries to withdraw and communicates that to the other person�and the other individual continues to use
No combat by agreement unless authorized by law.
You cannot "take it outside" and use force lawfully.
The reasonableness of the accused's use of force may include consideration of prior violent acts of the "victim" or those specific aspects of the other person's character�violence�actually known to the accused.
But, generally, prior acts or characteristics of the "victim," such as prior use of unlawful force against another or a tendency to engage in physical violence are not admissible to show that the accused's use of force against the "victim" was justified.
Deadly physical force may be used by an actor only when he reasonably believes that another is either:
1) Using or about to use deadly physical force against the actor
2) is committing or about to commit a felony involving the use of force against the actor
3) to protect another person whose life is endangered or about to be victimized by domestic abuse. [
Deadly physical force may not be used if the actor can retreat. But there is no duty to retreat if the actor:
1) Cannot retreat in safety
2) Is in his or her home or the cartilage surrounding the home and was not the original aggressor
3) Is a law enforcement officer or a person assisting a law enforcement officer
Deadly physical force may not be used if the actor can safely
avoid its use by surrendering possession of property to an individual claiming a lawful right to the property. [Repossession situations]
An individual may use non-deadly physical force to prevent another person from
trespassing or attempting to trespass on the actor's premises or vehicle.
An individual may use deadly physical force if they reasonably believe it is necessary to prevent another person from
using deadly physical force against the actor or if necessary to prevent another person from committing arson or burglary.
Only physical force may be used if the actor reasonably believes it is necessary to
prevent theft or criminal mischief (destruction or vandalism) or their flight from commission of a theft or criminal mischief.
Arkansas recognizes the right of a person to defend himself or others in the home from intrusion by another and, by statute, provides that the individual protecting their home from intrusion or illegal entry is presumed to have
used the degree of force reasonably necessary to prevent the intrusion or protect persons in the home. Brockwell.
When the actor is reckless or negligent in arriving at a belief that they are justified in using force, the actor remains liable for
conviction of any offense that may be proved by proof of a reckless or criminally negligent culpable mental state. This may be referred to as imperfect self-defense. Harshaw.
Mistake of fact provides a statutory defensive theory that serves to reduce the
The fact that the State has charged the defendant with manslaughter or negligent homicide, which do not require proof of criminal intent other than recklessness or negligence, does not mean that the defendant cannot claim self-defense, Schnarr.
The jury could still have doubt as to whether the defendant acted recklessly or negligently, or reasonably, based on the evidence about the defendant's perception of the justification for using force or deadly force in defending himself or herself.
A law enforcement officer is justified in using force to effect an arrest or to prevent an escape from custody when necessary to defend himself or herself or another person against the use of force by the suspect or other person during the course of attem
Deadly force is warranted only if the law enforcement officer reasonably believes that the suspect has committed a felony and is armed, or that the use of deadly force is justified by the suspect's use or threatened use of deadly force. Tennessee v. Garne
An individual may use force or even deadly force when assisting an officer
under the same circumstances justifying use of force or deadly force by the officer.
An individual is not justified in using force to resist an arrest by a law enforcement officer or person known to be an officer or person assisting the officer assisting in making an arrest. However, the individual may use force in defense of
excessive use of force by an officer making an arrest based on Arkansas case law. This does not authorize an individual to use force against an officer in defense of their home unless the officer's use of force is not authorized or is excessive.
Entrapment is based on the concern that the government itself not engage in overly-aggressive law enforcement activities that actually cause
others to commit offenses they would otherwise not have�or probably not have�committed had they not succumb to temptation or pressure from law enforcement.
An example is the record of government pressure in Jacobson that played on the curiosity of the def
The problem for the defense asserting entrapment is that it does not afford an excuse for
the accused who is predisposed to commit an offense.
Merely affording that individual an opportunity to commit a crime does not reflect the type of governmental overreaching that amounts to entrapment. The thief who sells stole property in a sting operati
Under Arkansas law, entrapment is an affirmative defense requiring the defendant to prove that he was entrapped by a preponderance of the evidence.
The focus in on the conduct of the government or law enforcement that
induces the commission of an offense by using persuasion or other means likely to cause a normally law-abiding person to commit the offense."
The existence of a pattern of aggressive inducements or subtle threats designed to lead the accused into committ
When the accused claims entrapment, evidence demonstrating the overreaching by the police is admissible to establish
whether the accused was law-abiding or otherwise not predisposed to commit the offense charged
or whether police merely afforded the accused the opportunity to commit a crime without inducing him to do so
Arkansas now recognizes that the defendant may assert entrapment as an affirmative defense while still
arguing that the State has failed to prove actual commission of the offense charged, or all of its elements. Smoak.
Unlike entrapment, the public servant justification is a statutory defense based on the accused's reasonable belief that his actions are lawful, or that he is in the act of assisting a law enforcement officer in performance of their duties.
The reasonableness of the accused's belief may be based on reliance on a judicial decree or statute, or in response to a request or directive given by a public servant or performed by an accused who acts as a public servant.
The entrapment defense has something of a good faith component because the individual will be justified even when the effort is not actually warranted by law or the authority of or given to a public servant.
Even though the court order the individual is following or the response to the public servant's performance of their duties is not it lawfully correct, the individual actor may have relied on the apparent lawfulness in good faith and does not lose the pro
The entrapment defense is probably not used very often because
if the individual has a good faith basis for their actions in attempting to comply with a court order or in responding to a request for assistance by a public servant, it is actually unlikely that charges will be filed. If filed initially, the charges are
The argument in The Queen v. Dudley and Stephens that the killing of the dying boy to provide a source of nutrition for the surviving sailors could be justified by necessity was rejected by the Justices on the Queen's Bench
who concluded that the taking of innocent life could not be justified to save oneself.
Defensive theories based on the concepts of duress or coercion developed at the common law. They provide arguments for acquittal for inmates who escape from custody when conditions of incarceration or threats of violence cannot be safely addressed within
to excuse or justify escape typically required proof of an imminent threat of violence or injury
inability to obtain relief from wardens, guards or other institutional officials or from the courts
and immediate return to custody when it is safe to do so.
Arkansas law recognizes both the affirmative defense of duress and the justification termed
necessity," "choice of evils," or "imminency or emergency justification."
Both theories included in Arkansas Criminal Code.
The affirmative defense of duress requires the defendant to prove by a preponderance of the evidence that the offense was committed under
threat or use of unlawful force when tested by ordinary standards of reasonableness, such that a person of "ordinary firmness" such that a person in the accused's situation would not have resisted.
Duress is limited by statute to actual use or threat of use of force and not other sources of pressure, such as economic injury, public disclosure of private information, or humiliation.
Duress is limited by statute to actual use or threat of use of force and not other sources of pressure, such as economic injury, public disclosure of private information, or humiliation.
The objective standard of reasonableness means that only objectively-determined factors may be considered in support of the affirmative defense and not subjective factors peculiar to the individual accused.
Obvious infirmity, physical characteristics of the accused, age, or other impairment may be offered as evidence, but not the particular personal experience or emotional characteristics of the accused in consideration of the objective reasonableness of the
Duress is dependent on the actor's own lack of culpability.
If the defendant created the situation ultimately resulting in the threat or use of force against him, the defense is not available.
If it was reasonably foreseeable that the situation in which the actor claims duress was created by their own action, dure
Necessity is a statutory defense in which the Arkansas and other courts have accepted the notion that commission of some offenses may be justified when
the circumstances perceived by the individual accused would have resulted in greater public or private injury but for the commission of a minor offense.
Not designed to justify serious offenses, particularly those involving violence or threatened violence
The actor's offense cannot be predicated on objection to the advisability or morality of the statute defining the offense.
You cannot smoke marijuana and claim you are justified because the statutes criminalizing marijuana are immoral, violate your right to personal autonomy or reflect bad public policy.
Necessity is not available if
the defendant has recklessly or criminally negligently caused the situation in which they then claim they had to commit an offense to prevent the greater injury threatened by the situation they created when the culpable mental state for the offense commit
Capital punishment�the imposition of the death sentence upon conviction for a capital crime�generally remains
constitutional and does not violate the Cruel and Unusual Punishment Clause of the Eighth Amendment.
The Supreme Court has ruled on a number of occasions that the way in which the capital sentence is imposed may violate the Eighth Amendment prohibition or due process because of
unfairness in the procedure by which it is imposed.
In Furman v. Georgia, the Court held that imposition of death sentence without standards guiding the discretion of a jury in setting punishment resulted in unconstitutional infliction of capital punishme
In response to Furman, state legislatures adopted new capital sentencing procedures that would arguably meet the objections of the five Justices voting to strike down then-existing death penalty laws. In 1976, the Court considered these post-Furman statut
unconstitutional because it did not require the sentencer to consider both the circumstances of the offense and character of the defendant in death penalty.
The Court upheld non-mandatory capital sentencing schemes that permitted the sentencer to base its decision on factors that included the character of the defendant. Woodson.
Individualized sentencing decisions are critical in the Supreme Court's capital sentencing jurisprudence.
The Court has restricted the use of capital punishment to punish
murder only, rejecting statutes that authorized death sentencing for rapists of adult women, and later, children-even when the state statute required proof of aggravating circumstances in order to impose death for rape of a child. Kennedy v. Louisiana.
Es
Liability for capital punishment ideally reflects the accused's actual level of culpability. This is important when the capital defendant is not the individual who actually causes the murder that will be prosecuted as a death sentence case.
In Enmund, the death sentence imposed on the accomplice who is actually only responsible for driving others from the scene of the robbery/murder was held disproportionate because there was not sufficient evidence that this defendant's relatively minor par
The execution of a mentally disabled, or mentally-retarded defendant violates
the Eighth Amendment prohibition of imposition of cruel and unusual punishments in Atkins v. Virginia.
The death sentence cannot be imposed on certain classes of capital defendants:
the mentally retarded and juveniles who committed murder while under the age of 18. Roper v. Simmons.
The basic structure used by most jurisdictions still authorizing capital sentencing requires the prosecution to first prove a capital offense,
distinguishing the capital murder from all murders, thus narrowing the number of offenders eligible for execution to those responsible for committing the most dangerous or heinous offenses.
Once the State charges the capital offense and gives notice of the aggravating circumstances it intends to prove to further narrow the class of capital offenders who are eligible for the death penalty, the prosecution will move forward with proof of the c
the sentencing phase.
The prosecution will then offer proof of the statutorily-defined aggravating circumstances that serving to narrow those offenses warranting death sentences. The prosecution is limited to proving those aggravating circumstances that h
The defense may then offer any evidence of mitigating circumstances�mitigation that would warrant a sentence of life imprisonment, rather than death. The default sentence is life because
the burden is on the State to prove that both a statutory aggravating circumstance or circumstances exist and that these outweigh the mitigating circumstances or mitigation offered by the defense.
The statute may list mitigating circumstances, such as you
If the jury finds mitigation outweighs aggravating circumstances, it will impose a life sentence. In most jurisdictions, if the jury is unable to reach a unanimous verdict on the special issues presented for deliberation, the statute will
require imposition of a life sentence. Only if there is unanimous agreement on those issues necessary to cause a death sentence to be imposed will the capital defendant be sentenced to death.
Not every jurisdiction, notably Texas, uses the weighing of aggravating circumstances against mitigating circumstances format for
capital sentencing and the Supreme Court has upheld variations.
Most recently, the Court has held that the Florida capital sentencing process that had been upheld in 1976 in Proffitt was flawed because
it permitted the trial judge to overrule a jury recommendation for life.
Hurst may be read to require jury sentencing in all capital cases.
In Ring v. Arizona, the Court had struck down the Arizona sentencing scheme in which judges imposed capital sentences, finding that the aggravating circumstances had to be
pleaded and proved beyond a reasonable doubt as part of the capital prosecution and by a jury. In federal capital trials, the defendant may elect to waive jury sentencing.
Arkansas requires that only the jury may impose a
death sentence.
Consistent with the USSCt's holding in Hurst v. Florida, requiring jury determination of whether evidence warrants imposition of death sentence based on proof of aggravating circumstances, then weighed against evidence of mitigation.
Arkansas follows the weighing scheme requiring jurors to decide
whether the State has proved one or more aggravating circumstances beyond a reasonable doubt
whether the aggravating circumstances outweigh the evidence of mitigating circumstances shown by the defense, if any
and whether the aggravating circumstances jus
Capital Sentencing in ARK: If the jury answers the three special issues yes,
a sentence of death is imposed pursuant to statute.
The verdict as to each special issue must be unanimous.
Capital Sentencing in ARK: If the jury answers the three special issues "no,
it has found for a life sentence, if the verdict is unanimous.
Capital Sentencing in ARK: If the jury cannot reach a unanimous verdict as to any one of the three special issues, or more,
a life sentence without parole is imposed as a sentence by operation of the statute.
The criminal law respecting punishment typical recognizes a number of penological approaches in setting penalties for violations of criminal law. These include:
retribution, imposition of a penalty for the express reason of punishing the offender for commission of the offense and the injury to others or the community resulting from the criminal conduct;
deterrence, the use of a penalty to cause individuals to obe
Although capital sentencing, the imposition of a death sentence, remains a constitutionally-accepted punishment, the Supreme Court has held that other punishment options violate
the Eighth Amendment prohibition against imposition of cruel and unusual punishment.
Example: the imposition of a sentence of 12 years at hard labor for commission of the non-violent offense of falsifying a public record held violative of the prohibition
Another example of a punishment deemed to violate the "cruel and unusual punishment" prohibition involved the loss of citizenship for a soldier convicted of desertion during war.
The Supreme Court in Trop v. Dulles, found this punishment excessive and unjustified in basically declaring the denationalized offender a "stateless" person who would have forfeited all rights of citizenship. The Court held a punishment authorized by law
The use of an extreme punishment, such as sterilization, may be evaluated from a number of perspectives, including
a violation of "equal protection" under the Fourteenth Amendment that occurs when individuals committing similar offenses are treated differently under the statute. In Skinner, the sterilization law was held unconstitutional because offenders committing d
Imprisonment for commission of a serious offense is almost always an option to be determined by the legislature, even if it is severe and may involve a mandatory punishment, even for first offenders. Harmelin, Davis.
By implication of course imposition of significant penalty for a minor offense�as opposed to drug trafficking�might still be viewed as so disproportionate to the offense that it would be "cruel and unusual.
Legislatures have a range of tools that permit sentencers to increase punishment based upon factors specific to the offender's motivation, the circumstances of the offense, or history of prior convictions involving the defendant. These include:
Increased punishment for defendants who commit crimes based on bias or animus toward a particular group, or individual characteristic of the victim, often referred to as "hate crimes." Under these statutory provisions, proof of the accused's animosity, or
The imposition of a life sentence without parole for a juvenile committing a non-homicide offense violates the Eighth Amendment because of
a juvenile's reduced level of culpability resulting from their lack of emotional and intellectual maturity. This penalty is cruel because it offers no hope for rehabilitation or release from imprisonment under any circumstance demonstrating the juvenile c
Similarly, the imposition of a mandatory life sentence for a juvenile that does not offer any possibility of release from imprisonment was held to
violate the Eighth Amendment in the case of an Arkansas juvenile offender. Miller v. Alabama and Jackson v. Hobbs.
A criminal defendant who is incompetent to stand trial will be committed to the state mental health department to determine whether he or she can be restored to competence for purposes of trial. If the mental health authorities determine that the defendan
be notified of this determination, but Arkansas law is not clear as to what procedure will then be appropriate for addressing the situation. The Supreme Court has held that indefinite confinement while the criminal charges remain pending is unconstitution
The states have developed approaches to dealing with mentally-ill or impaired individuals who exhibit a potential for dangerous or injurious behavior, whether toward other persons or themselves, including a history of behavior or simply threats.
Those individuals may be in need of treatment by mental health professionals and if unwilling or unable to obtain help, may be involuntarily civilly-committed to the state mental hospital for treatment with the burden being imposed upon the State to prove
When the State proceeds with involuntary civil commitment, the constitutional burden of proof that the State must meet, as the petitioning party, is proof by
clear and convincing evidence, Addington v. Texas, because the hospitalization involves significant infringement on the individual's liberty.
The State may not confine a defendant acquitted in a criminal prosecution based on impaired mental state on the basis of the likelihood that they will commit acts of criminal violence in the future upon release from mental health facilities if the individ
no longer suffers from the impaired mental state upon which the acquittal was based. Foucha v. Louisiana. Involuntary commitment requires proof of both continuing mental impairment and dangerousness under Addington.
A statutory scheme that provides that a sexual predator offender may be involuntarily confined until cured or no longer a threat to commit sexual offenses in the future does not violate the Eighth Amendment guarantee of due process, the protection against
The confinement is not extended punishment for commission of a sex offense, but is imposed for purposes of treatment, much like involuntary hospitalization for individuals suffering from a mental abnormality who present a threat to engage in an act of vio
Mentally impaired individuals, whether accused or convicted, often pose particularly difficult problems in the criminal justice system, as in the case of unfit or incompetent defendants who cannot be restored to competence for trial.
The impaired accused who can be restored to competence, meaning that psychosis can be addressed with antipsychotic drugs or that other symptoms may be abated with other psychoactive medications, can be forcibly medicated without their consent under some c
In Riggins, the Supreme Court found that the trial court's order for forced medication did not properly reflect consideration of the factors necessary for determination that the use of medication without the accused's consent was justified. Later, in Sell
1) the State's interest in both determining the accused's guilt and ensuring a fair trial;
2) whether forced medication will meet the goal of restoring competence
3) whether there is a less-restrictive means to achieve the goal; and
4) whether forced medi
A mentally-disturbed inmate, having been convicted and lost significant liberty as a consequence, may be forcibly medicated if
violent and a danger to institutional security if there is agreement among prison officials and mental health professionals that forced medication is necessary. Washington v. Harper.
A death row inmate who suffers from mental illness and has lost competence cannot be executed until competence is restored. Ford v. Wainwright.
The test is whether the inmate understands that he will be executed and the reason for his execution.
The Supreme Court has never ruled on the issue of whether the forced medication of an incompetent defendant sentenced to death is constitutionally-acceptable in order to render him or her competent for execution. State supreme courts in Louisiana and Sout
a mentally ill death row inmate who was forcibly medicated because of his psychotic symptoms that threatened institutional security had been treated for his mental illness. The fact that his medication would render him competent for execution was simply a