Ark. Code Ann. § 16-44-201 (2026)
Authorization for deposition generally — Manner of taking — Use
- The court or judge in vacation, or a Justice of the Supreme Court, may authorize either party to take the deposition of a material witness where there are reasonable grounds to apprehend that, before trial, the witness will die, will become mentally incapable of giving testimony or physically incapable of attending the trial, or will become a nonresident of the state. The materiality of the testimony and the reason for taking the deposition shall be shown by affidavit.
- The court or judge shall, by written order, prescribe the manner of taking the deposition whether by interrogatories or upon notice to the parties.
- Upon the death of the witness, or upon his becoming mentally incapable of testifying or a nonresident of the state and absent therefrom so that he could not be summoned, the deposition taken in pursuance of such order may be read as evidence, provided that the grounds of nonresidence and absence from the state shall not be sufficient unless the party wishing to use the deposition makes an affidavit that he has tried in good faith to procure the attendance of such witness and been unable to do so.
History. Crim. Code, § 154; C. & M. Dig., §§ 3112-3115; Pope's Dig., §§ 3946-3949; Acts 1979, No. 1022, § 1; A.S.A. 1947, § 43-2011.
Cross References. Prisoners, deposition of, § 16-43-213.
Case Notes
Constitutionality.
Neither the Federal nor Arkansas Constitutions render this section unconstitutional on the basis that it does not provide for compulsory depositions in criminal proceedings. McDole v. State, 339 Ark. 391, 6 S.W.3d 74 (1999).
In General.
This section provides the method of taking depositions in criminal cases. Bailey v. State, 227 Ark. 889, 302 S.W.2d 796.
The right to take depositions in a law case rests upon statutory authority and in no case can the right be exercised unless the authority therefor exists. Russell v. State, 269 Ark. 44, 598 S.W.2d 96 (1980).
Due Diligence.
Mere issuance of a subpoena does not constitute due diligence that would justify continuance to take deposition of absent witness; the accused must also make an effort to ascertain what progress is being made in the due service of same. Jones v. State, 205 Ark. 806, 171 S.W.2d 298, 1943 Ark. LEXIS 247 (1943).
Defendant's application to take a deposition from a nonresident witness was properly overruled where the defendant did not exercise due diligence. Criner v. State, 236 Ark. 220, 365 S.W.2d 252 (1963).
Nonresidents.
Defendants in criminal cases are entitled to take the depositions of witnesses residing out of the state, and the Supreme Court will compel the circuit court by mandamus to make the order necessary to take depositions of nonresidents. Gibony v. Rogers, 32 Ark. 462 (1877).
Objection.
Where the prosecuting attorney signed a stipulation agreeing that the deposition of a certain witness might be taken before any notary public and waiving all formalities, and the deposition was taken before a justice of the peace and filed with the clerk six days before the trial, an objection at the trial that the deposition was not taken before a notary public was not taken in apt time. Seamster v. State, 74 Ark. 579, 86 S.W. 434 (1905).
Quashing Depositions.
It is proper to quash depositions not taken by consent or pursuant to order. McDonald v. State, 155 Ark. 142, 244 S.W. 20 (1922).
Subpoena duces tecum directing corporate official to appear at pretrial deposition with all records relating to work and pay records of co-workers involved in dispute was properly quashed despite defendant's claim that the information was relevant to his defense, since the issue of discrimination by the employer was irrelevant to the dispute and, moreover, there was not statutory authority for the taking of a pretrial deposition in such circumstances. Kelley v. State, 7 Ark. App. 130, 644 S.W.2d 638 (1983), superseded by statute as stated in, Conner v. State, 75 Ark. App. 418, 58 S.W.3d 865 (2001).
Cited: State v. Russell, 271 Ark. 817, 611 S.W.2d 518 (1981); Shelton v. State, 287 Ark. 322, 699 S.W.2d 728 (1985).