Ark. Code Ann. § 16-43-403 (2026)
Witness from another state
If a person in any state, which by its laws has made provision for commanding persons within its borders to attend and testify in criminal prosecutions or proceedings or grand jury or prosecuting attorney's investigations commenced or about to commence, in this state, is a material witness in a prosecution or proceeding pending in a court of record in this state, or in a grand jury or prosecuting attorney's investigation which has commenced or is about to commence, a judge of such court may issue a certificate under the seal of the court stating these facts and specifying the number of days the witness will be required. The certificate may include a recommendation that the witness be taken into immediate custody and delivered to an officer of this state to assure his attendance in this state. This certificate shall be presented to a judge of a court of record in the county in which the witness is found.
If the witness is summoned to attend and testify in this state he shall be tendered the sum of twelve cents (12¢) a mile for each mile by the ordinary traveled route or the actual expenses of travel, lodging, and meals to and from the court where the prosecution or proceeding is pending or the grand jury or prosecuting attorney's investigation is being conducted and twenty-five dollars ($25.00) for each day that he is required to travel and attend as a witness. A witness who has appeared in accordance with the provisions of the summons shall not be required to remain within this state a longer period of time than the period mentioned in the certificate, unless otherwise ordered by the court. If such witness, after coming into this state, fails without good cause to attend and testify as directed in the summons, he shall be punished in the manner provided for the punishment of any witness who disobeys a summons issued from a court of record in this state.
History. Acts 1935, No. 65, § 2; Pope's Dig., § 3943; Acts 1953, No. 352, § 1; 1977, No. 453, § 2; A.S.A. 1947, § 43-2006.
Case Notes
In General.
This section provides a mechanism for the defendant to request the court to order the attendance of the defendant's witnesses. Perry v. Norris, 879 F. Supp. 1503 (E.D. Ark. 1995), aff'd, 107 F.3d 665 (8th Cir. 1997).
Capital Cases.
Section 16-43-208, which provides for unlimited out-of-state witnesses in capital felony cases, must be read in conjunction with this section; such right to witnesses is not absolute but, rather, rests within the sound discretion of the trial judge. Mackey v. State, 279 Ark. 307, 651 S.W.2d 82 (1983).
Trial court erred in refusing to subpoena out-of-state government witnesses who performed certain tests which were negative or inconclusive in linking defendant to crime; however, error was harmless where other evidence available to jury indicated that test results were negative. Mackey v. State, 279 Ark. 307, 651 S.W.2d 82 (1983).
Compulsory Process.
The right to compulsory process is not absolute. In order to be entitled to compulsory process, the defendant must show how the witness' testimony would have been both material and favorable to his defense. Wright v. Lockhart, 914 F.2d 1093 (8th Cir. 1990), cert. denied, 498 U.S. 1126, 111 S. Ct. 1089, 112 L. Ed. 2d 1193 (1991), cert. denied, Leslie Salt Co. v. United States, 498 U.S. 1126, 111 S. Ct. 1089, 112 L. Ed. 2d 1194 (1991).
In order to establish that noncompelled testimony is material, defendant must show that the suppressed evidence might have affected the outcome of the trial. Wright v. Lockhart, 914 F.2d 1093 (8th Cir. 1990), cert. denied, 498 U.S. 1126, 111 S. Ct. 1089, 112 L. Ed. 2d 1193 (1991), cert. denied, Leslie Salt Co. v. United States, 498 U.S. 1126, 111 S. Ct. 1089, 112 L. Ed. 2d 1194 (1991).
Even if the denial of compulsory process amounts to constitutional error, federal circuit court will not reverse a conviction if the error is harmless. Wright v. Lockhart, 914 F.2d 1093 (8th Cir. 1990), cert. denied, 498 U.S. 1126, 111 S. Ct. 1089, 112 L. Ed. 2d 1193 (1991), cert. denied, Leslie Salt Co. v. United States, 498 U.S. 1126, 111 S. Ct. 1089, 112 L. Ed. 2d 1194 (1991).
Trial court's refusal to compel the attendance of nonresident witnesses did not violate defendant's Sixth Amendment right to compulsory process. Wright v. Lockhart, 914 F.2d 1093 (8th Cir. 1990), cert. denied, 498 U.S. 1126, 111 S. Ct. 1089, 112 L. Ed. 2d 1193 (1991), cert. denied, Leslie Salt Co. v. United States, 498 U.S. 1126, 111 S. Ct. 1089, 112 L. Ed. 2d 1194 (1991).
Discretion of Court.
The issuance of a petition for certification of a material nonresident witness, which compels attendance at government expense, is not an absolute right and lies within the discretion of the trial court. Wright v. State, 267 Ark. 264, 590 S.W.2d 15 (1979); Logan v. State, 300 Ark. 35, 776 S.W.2d 341 (1989); Perry v. Norris, 879 F. Supp. 1503 (E.D. Ark. 1995), aff'd, 107 F.3d 665 (8th Cir. 1997).
Although the court was unaware it had any authority to act under this section, the result was the same as if the trial court had knowingly exercised its discretion by deciding that it would not, under the facts and circumstances of this case, issue a certificate demanding that the Alabama authorities require the attendance of defendant's witnesses; the defendant's constitutional rights were not violated. Perry v. Norris, 879 F. Supp. 1503 (E.D. Ark. 1995), aff'd, 107 F.3d 665 (8th Cir. 1997).
There is no absolute right to the certification process created by this section; the matter is within the discretion of the trial judge. Rowbottom v. State, 327 Ark. 76, 938 S.W.2d 224 (1997).
Expenses.
Where trial court had offered to allow the defendant to either bring four witnesses from out-of-state to testify at the trial or to take the depositions of an unlimited number of out-of-state witnesses, and the defendant chose to take the depositions, the defendant failed to establish that he was prejudiced by the court's failure to also allow him expenses for out-of-state witnesses since apparently all of the witnesses suggested by the defendant appeared at the trial anyway. Perry v. State, 277 Ark. 357, 642 S.W.2d 865 (1982).
Reasonable Efforts to Procure Witness.
It was reversible error to permit the reading in evidence of a transcript of evidence given by a witness at a previous trial because of the absence of the witness from the state when the state's efforts to obtain the presence of the witness at the trial was confined to the issuance of two subpoenas and did not include inquiries as to the exact whereabouts of the witness nor efforts to obtain his testimony under this section. Satterfield v. State, 248 Ark. 395, 451 S.W.2d 730 (1970).
Where state waited until it was too late to obtain witness under this section, the state's efforts were not reasonable; however, the state's misconduct in reading into the record the witness's testimony given at the first trial was harmless error, since the testimony was not critical because a rape victim's testimony need not be corroborated. Holloway v. State, 268 Ark. 24, 594 S.W.2d 2 (1980).
Refusal to Subpoena.
Court did not abuse its discretion in refusing to subpoena out-of-state witnesses sought by the defendant in connection with his defense. Wright v. State, 267 Ark. 264, 590 S.W.2d 15 (1979).
Where defendant failed to support his claim that witness' out-of-state estranged husband was a material witness, the judge properly refused to compel his attendance. Rowbottom v. State, 327 Ark. 76, 938 S.W.2d 224 (1997).
Witness Taken into Custody.
Testimony of a material witness did not need to be suppressed because the witness was arrested and placed in jail for three days before she was transported back to this state; this section does contemplate that the material witness be taken into custody in the foreign state. Verdict v. State, 315 Ark. 436, 868 S.W.2d 443 (1993).
Cited: Coble v. State, 274 Ark. 134, 624 S.W.2d 421 (1981); Leshe v. State, 304 Ark. 442, 803 S.W.2d 522 (1991); Greene v. State, 356 Ark. 59, 146 S.W.3d 871 (2004).