Ark. Code Ann. § 16-43-212 (2020)

Research References

Ark. L. Rev.

Hall, The Prosecutor's Subpoena Power, 33 Ark. L. Rev. 122.

Case Notes

Constitutionality.

The court rejected defendant's argument that he was denied due process when he was not allowed equal discovery rights to those given the state pursuant to this section. Wardius v. Oregon, 412 U.S. 470, 93 S. Ct. 2208, 37 L. Ed. 2d 82 (1973) does not suggest that the due process clause requires states to adopt discovery procedures in criminal cases, but rather it held that, where a state imposes discovery against a defendant, equivalent rights must be given to a defendant. Alford v. State, 291 Ark. 243, 724 S.W.2d 151 (1987).

Attorney-Client Privilege.

Where an accident reconstructionist was hired by an attorney representing a driver who was involved in a car accident, the accident reconstruction report and testimony of the accident reconstructionist's employee were confidential, privileged communications that could not be subpoenaed. Holt v. McCastlain, 357 Ark. 455, 182 S.W.3d 112 (2004).

Authority of Prosecutor.

A prosecuting attorney may not, under guise of an investigation of possible vote buying, subpoena the bank records of a political party's checking account and thereby ascertain the identity of all contributors to the party's campaign and the amounts of their contributions without a showing that such information is reasonably relevant to such investigation or that public interest in the disclosure of such information is sufficiently cogent and compelling to outweigh the legitimate and constitutionally protected interests of the party and its contributors in having that information remain private. Pollard v. Roberts, 283 F. Supp. 248 (E.D. Ark.), aff'd, 393 U.S. 14, 89 S. Ct. 47, 21 L. Ed. 2d 14 (1968).

The authority of the prosecuting attorney to subpoena witnesses for investigative purposes is limited to subpoenaing those witnesses to appear at a place in the county where the alleged offenses or matters to be investigated occurred. State ex rel. Streett v. Stell, 254 Ark. 656, 495 S.W.2d 846 (1973).

Use of the prosecutor's subpoena power to obtain the presence of a witness for questioning by a police officer, absent the prosecutor, was illegal. Duckett v. State, 268 Ark. 687, 600 S.W.2d 18 (Ct. App. 1980).

A prosecuting attorney who issues a subpoena pursuant to this section takes the place of a grand jury. Kaylor v. Fields, 661 F.2d 1177 (8th Cir. 1981).

While subpoenas may be used under this section to bring in witnesses to interrogate them about a case under investigation as well as to review their testimony before trial but after the case has been investigated, it was an abuse of the prosecutor's subpoena power to assemble all of the state's witnesses in the trial courtroom prior to trial and question them under oath and in the presence of each other regarding the crime, without the knowledge of the trial judge or defense attorney, since this procedure without cross-examination could pressure recalcitrant witnesses to conform their testimony with the others. Cook v. State, 274 Ark. 244, 623 S.W.2d 820 (1981).

In the absence of an abuse of the power, a prosecutor's subpoena may be used to prepare for trial after charges have been filed. Todd v. State, 283 Ark. 492, 678 S.W.2d 345 (1984).

Where, without a subpoena, police officers picked up the defendant ostensibly because the prosecutor wished to see her, but the prosecutor did not participate in the subsequent questioning, the defendant's subsequent statement should have been suppressed. Foster v. State, 285 Ark. 363, 687 S.W.2d 829 (1985).

A prosecutor's power to subpoena must be used only for the prosecutor's investigation; the prosecutor abused his power to subpoena when he commanded that records be produced for the police. State v. Hamzy, 288 Ark. 561, 709 S.W.2d 397 (1986).

Prosecutor's use of his subpoena power to subpoena three witnesses who did not testify at trial, and to subpoena defendant's school records, was for investigation and preparation and did not amount to an abuse of the power. Echols v. State, 326 Ark. 917, 936 S.W.2d 509 (1996), cert. denied, Echols v. Arkansas, 520 U.S. 1244, 117 S. Ct. 1853, 137 L. Ed. 2d 1055 (1997).

Where a prosecutor issued a subpoena to obtain the defendant's medical records from a county health department after two people tested positive for HIV and reported that they believed they had contracted it from the defendant, the prosecutor properly used the subpoena as an investigatory tool and not as a tool for a police investigation. Weaver v. State, 66 Ark. App. 249, 990 S.W.2d 572, cert. denied, 528 U.S. 913, 120 S. Ct. 265, 145 L. Ed. 2d 222 (1999).

Defendant's first-degree murder conviction was overturned and the case was remanded for a new trial where a witness's prior inconsistent statement was improperly admitted. The prosecutor's subpoena of the witness was not used for the deputy prosecutor's investigation, but instead was used for a detective's investigation, and the detective was not an official authorized to take the witness's statement under § 16-43-212(a). Stephens v. State, 98 Ark. App. 196, 254 S.W.3d 1 (2007).

During a capital murder trial, the court did not err in admitting text messages from a cellular telephone number assigned to defendant because the prosecutor's subpoena requests were not unreasonable in scope or irrelevant; the prosecutor did not abuse the prosecutor's subpoena power. Gulley v. State, 2012 Ark. 368, 423 S.W.3d 569 (2012).

Defense Witnesses.

Subpoena of defense witnesses several months after the charges were filed and only one month prior to the original trial date was not an abuse of the prosecutor's subpoena power. Neal v. State, 320 Ark. 489, 898 S.W.2d 440 (1995).

Federal Court Abstention.

The federal courts should abstain in a suit filed by a subpoena recipient who alleges that the prosecuting attorney subpoenaed papers and documents without probable cause. Kaylor v. Fields, 661 F.2d 1177 (8th Cir. 1981).

Right to Counsel.

Witnesses required to testify before the prosecuting attorney under this section are entitled to have their attorneys present. Gill v. State ex rel. Mobley, 242 Ark. 797, 416 S.W.2d 269 (1967).

Specificity of Subpoena.

A prosecuting attorney's subpoena issued under this section requiring a bank to produce records pertaining to the bank account of one of its depositors was not objectionable because it failed to specify the crime committed or the name of the person charged with committing it. First Nat'l Bank v. Roberts, 242 Ark. 912, 416 S.W.2d 316 (1967).

Statement Under Oath.

Prior inconsistent statement by witness given under oath to the deputy prosecuting attorney was properly admitted for its substantive content and a limiting instruction was not required since it was given to the prosecuting attorney as provided for in this section. Slavens v. State, 1 Ark. App. 245, 614 S.W.2d 529 (1981).

Waiver of Irregularities.

Defendant waived any irregularity in filing of information with the clerk instead of in open court, when he entered a plea of not guilty, as defendant was then in court. Ogles v. State, 214 Ark. 581, 217 S.W.2d 259 (1949).

Cited: Kiefer v. State, 297 Ark. 464, 762 S.W.2d 800 (1989); In re Badami, 309 Ark. 511, 831 S.W.2d 905 (1992).