Ark. R. Civ. P. 43 (2026)

Rule 43. Taking of Testimony. (a) Form. In all trials, the testimony of witnesses shall be taken in open court, unless otherwise provided by these rules, including Rule 88 relating to virtual and blended court proceedings, or as otherwise provided by law. (b) Affirmation in Lieu of Oath. Whenever under these rules an oath is required to be taken, a solemn affirmation may be accepted in lieu thereof. (c) Evidence on Motions. When a motion is based on facts not appearing of record, the court may hear the matter on affidavits presented by the respective parties, or the court may direct that the matter be heard wholly or partly on oral testimony or deposition.

(d) Interpreters. The court may appoint an interpreter of its own selection and may fix his reasonable compensation. The compensation shall be paid out of funds provided by law or by one or more of the parties as the court may direct, and may be taxed ultimately as costs, in the discretion of the court. Reporter’s Notes to Rule 43: 1. Prior to the 1975 amendments, FRCP 43 was entitled "Evidence" and provided the basic rule of evidence in civil cases in federal courts. The adoption of the Federal Rules of Evidence abrogated much of FRCP 43; hence its substantial revision in 1975. By enacting Act 723 of 1976, the Arkansas Legislature adopted the Uniform Rules of Evidence which are identical to the Federal Rules of Evidence insofar as the mode and order of interrogation and presentation of testimony are concerned. Hence, Rule 43 is identical to FRCP 43. 2. Sections (b) and (c) do not work any changes in Arkansas procedure. Superseded Ark. Stat. Ann. § 28-201 (Repl. 1962) permitted the use of affidavits upon motions although inherent in that statute was the right of the trial court to require oral or deposition testimony in lieu of affidavits. 3. Section (d) is identical to FRCP 43(f) and provides for the permissive appointment of an interpreter and the payment of his compensation. Rule 604 of the Uniform Rules of Evidence touches upon the use of interpreters and requires that he be subject to the provisions of the Uniform Rules concerning qualifications as an expert and the administration of an oath or affirmation that he will make a true translation. Addition to Reporter’s Notes, 2005 Amendments: Rule 43(a) has been amended in two ways. Continuing the substantial identity between the Arkansas Rule and FRCP 43, both of these changes mirror 1996 revisions of the Federal Rule. First, the requirement that testimony be taken "orally" has been eliminated. The amendment allows testimony through non-verbal means (i.e., writing, sign language, or computer) from a witness who is unable to speak. Second, a new provision has been added. That provision gives the circuit court discretion to allow testimony in open court from a different location by contemporaneous transmission. Two important requirements must inform that discretion: good cause shown in compelling circumstances and appropriate safeguards. Because our legal tradition strongly prefers testimony in the fact-finder’s presence, the inconvenience to a witness of attending trial will not establish good cause or compelling circumstances. The amended Rule contemplates some unexpected event that makes attendance by the witness very difficult. Examples of such events include an accident, an illness, or the need for an emergency hearing. When the witness’s absence can be reasonably anticipated, a deposition should be the preferred method of securing the testimony. See generally, Advisory Committee’s Note, 1996 Amendment to FRCP 43(a). The amended Rule also requires the circuit court to adopt appropriate safeguards when it allows testimony by contemporaneous transmission. Those safeguards should ensure accurate identification of the witness, protect against influence by persons present with the witness, and secure accurate transmission of the testimony.

HISTORY Amended February 10, 2005; amended May 19, 2022, effective June 1, 2022.

Rule 44. Proof of Official Record. (a) Authentication. (1) Domestic Record. An official record kept within the United States, or any state, district or commonwealth, or within a territory subject to the administrative or judicial jurisdiction of the United States, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by the officer’s deputy, and accompanied by a certificate that such officer has the custody. The certificate may be made by a judge of a court of record having jurisdiction in the governmental unit in which the record is kept, authenticated by the seal of the court, or by any public officer having a seal of office and having official duties in the governmental unit in which the record is kept, authenticated by the seal of his office. (2) Foreign Record. A foreign official record, or an entry therein, when admissible for any purpose, may be evidenced by an official publication, or copy thereof, attested by a person authorized to make attestation, and accompanied by a final certification as to the genuineness of the signature and official position (i) of the attesting person, or (ii) of any foreign official whose certificate of genuineness of signature and official position relates to the attestation or is in a chain of certificates of genuineness of signature and official position relating to the attestation. A final certificate may be made by a secretary of embassy or legation, consul general, consul, vice consul, or consular agent of the United States, or a diplomatic or consular official of the foreign country assigned or accredited to the United States. If a reasonable opportunity has been given to all parties to investigate the authenticity and accuracy of the documents, the court may, for good cause shown, (i) admit an attested copy without final certificate or (ii) permit the foreign official record to be evidenced by an attested summary with or without a final certification. The final certification is unnecessary if the record and the attestation are certified as provided in a treaty or convention to which the United States and the foreign country in which the official record is located are parties. (b) Alternate Method for Certain Domestic and Foreign Records. The statutes, codes, written laws, executive acts, or legislative or judicial proceedings of any domestic or foreign jurisdiction or governmental unit thereof may also be evidenced by any publication proved to be commonly accepted as proof thereof in the tribunals having jurisdiction in that governmental unit. (c) Lack of Record. A written statement that after diligent search, no record or entry of a specified tenor is found to exist in the records designated by the statement, authenticated as provided in subdivision (a)(1) of the rule in the case of a domestic record, or complying with the requirements of subdivision (a)(2) of this rule for a summary in the case of a foreign record, is admissible as evidence that the records contain no such record or entry. (d) Other Proof. This rule does not prevent the proof of official records or of entry or lack of entry therein by another method authorized by law. Reporter’s Notes to Rule 44: 1. With the exception of minor wording changes, Rule 44 is substantially identical to FRCP 44. These changes are lifted from superseded Ark. Stat. Ann. §

27-2505 (Supp. 1975), which was taken largely from FRCP 44. These changes do not affect the substance of the Federal Rule. 2. In the last sentence of Section (a)(1), the phrase "of the district or political subdivision" which is found in the Federal Rule, is omitted and the phrase "having jurisdiction in the governmental unit" is inserted in lieu thereof. The effect of this change is to require that the judge making the certificate be the judge of a court which has jurisdiction. 3. Section (b) includes the alternate method of proving certain records previously found in superseded Ark. Stat. Ann. § 27-2505(c) (Supp. 1975). Although this provision is not found in FRCP 44, it has been held that such proof is proper. United States v. Aluminum Company of America, 1 F.R.D. 71 (D.C. N.Y., 1939). Also, it should be noted that Rule 902 (5) of the Uniform Rules of Evidence permits the use of official publications without extrinsic evidence of authenticity. Addition to Reporter’s Notes, 1993 Amendment: The changes made in subdivisions (a)(1) and (a)(2) are identical to those made in the corresponding federal rule in 1991. The amendment to subdivision (a)(1) strikes the references to specific territories, two of which are no longer subject to the jurisdiction of the United States and adds a generic term to describe governments having a relationship with the United States such that their official record should be treated as domestic records. The amendment to subdivision (a)(2) adds a sentence to dispense with the final certification by diplomatic officers when the United States and the foreign country where the record is located are parties to a treaty or convention that abolishes or displaces the requirement. In that event the treaty or convention is to be followed. This changes the former procedure for authenticating foreign official records only with respect to records from countries that are parties to the Hague Convention Abolishing the Requirement of Legalization for Foreign Public Documents. It does not affect the former practice of attesting the records, but only changes the method of certifying the attestation. See generally Comment, 11 Harv. Int’l L.J. 476 (1970).

HISTORY Amended November 8, 1993, effective January 1, 1994.