By Bourgon B. Reynolds | 34 U. ARK. LITTLE ROCK L. REV. 191 (2011).
The author of this note argues that the Arkansas courts have interpreted Zinger v. State, in a manner that deprives criminal defendants of the right to present a complete defense. In Zinger, the Arkansas Supreme Court failed to make clear what approach to third-party exculpatory evidence lower courts should follow. In dicta the court initially discussed a relatively high standard, the direct connection test, which requires a direct connection between the crime and a third party. Next, however, the court discussed a far more lax standard for the admissibility of the evidence, the connection combination test, permitting either a direct or circumstantial evidentiary connection between the crime and the third party. Finally, the court concluded that because there was neither circumstantial nor direct evidence of a third-party perpetrator in the case at bar, the exculpatory evidence was inadmissible.
The author begins by examining the various approaches of other states in order to provide a backdrop for how Arkansas‘s approach fits into the national framework of the admissibility of exculpatory evidence. The author then examines Zinger and the Arkansas cases that have followed. The ambiguity problems with Zinger are attributed to poor organization within the text of the opinion. The author analyzes the different approaches that Arkansas courts have taken when applying the Zinger case. The author concludes with a suggestion that in light of the implications the current Arkansas approaches have on the constitutionally guaranteed rights of criminal defendants, the court should adopt a new standard based on a strict application of Arkansas Rules of Evidence 401 and 403. The author argues for an approach that would treat all evidence the same, eliminating the current misconception in Arkansas courts that admission of exculpatory evidence requires an ―exotic or specialized category of proof, i.e., a direct connection, to be admissible. Under the suggest approach, the judge will begin with a Rule 401 relevancy determination, namely: ―to be relevant, the evidence need only tend to create a reasonable doubt as to the defendant‘s guilt. Next, the judge will evaluate the exculpatory evidence under a strict application of Rule 403. This analysis will require the judge to weigh the evidence‘s probative value versus the danger of unfair prejudice, a confusion of the issues, or the possibility that it will mislead the jury.
This standard will permit jurors to truly hear and evaluate the facts of the case. Under this new approach, unfounded fears about juries are lessened, and the judge will assume the proper role as the gate-keeper while the jury remains the ultimate trier of fact.