Ark. Code Ann. § 16-44-202 (2026)
Deposing witnesses upon showing of inability to attend trial — Use of depositions
- If it appears that a prospective witness may be unable to attend or be prevented from attending a trial or hearing, that his or her testimony is material, and that it is necessary to take his or her deposition in order to prevent a failure of justice, the court at any time after the filing of an indictment or information may order, upon motion of either party and notice to the parties, that his or her testimony be taken by deposition and that any designated books, papers, documents, or tangible objects not privileged be produced at the same time and place. If a witness is committed for failure to give bail to appear to testify at a trial or hearing, the court on written motion of the witness and upon notice to the parties may direct that his or her deposition be taken. After the deposition has been subscribed, the court may discharge the witness.
- If a defendant is without counsel, the court shall advise him or her of the right provided for in subsection (a) of this section and assign counsel to represent him or her unless the defendant elects to proceed without counsel or is able to obtain counsel. If it appears that a defendant at whose instance a deposition is to be taken cannot bear the expense thereof, the court may direct that the expenses of travel and subsistence of the defendant's attorney for attendance at the examination shall be paid by the state.
- A deposition shall be taken in the manner provided in civil actions. The court at the request of either party may direct that a deposition be taken on written interrogatories in the manner provided in civil actions.
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At the trial or upon any hearing, a part or all of a deposition, so far as otherwise admissible under the rules of evidence, may be used if it appears:
- That the witness is dead;
- That the witness is out of the State of Arkansas unless it appears that the absence of the witness was procured by the party offering the deposition;
- That the witness is unable to attend or testify because of sickness or infirmity; or
- That the party offering the deposition has been unable to procure the attendance of the witness by subpoena. Any deposition may also be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness. If only a part of a deposition is offered in evidence by a party, an adverse party may require him or her to offer all of it which is relevant to the part offered and any party may offer other parts.
- Objections to receiving in evidence a deposition or part thereof may be made as provided in civil actions.
- This section shall be applicable to city, district, and circuit courts of this state.
History. Acts 1971, No. 381, §§ 1, 4; 1979, No. 1022, § 2; A.S.A. 1947, §§ 43-2011.1, 43-2011.4; Acts 2003, No. 1185, §§ 184, 185.
Amendments. The 2003 amendment substituted “city, district” for “municipal, police” in (f).
Research References
Ark. L. Rev.
Arkansas' 1971 Criminal Discovery Act, 26 Ark. L. Rev. 1.
Criminal Procedure: A Survey of Arkansas Law and the American Bar Association's Standards, 26 Ark. L. Rev. 169.
Case Notes
Applicability.
This section authorized defendant, who was charged with drunken driving, to obtain for additional testing a perchlorate tube which the city police had used in making a blood-alchohol test. City of Rogers v. Municipal Court, 259 Ark. 43, 531 S.W.2d 257 (1976).
Error.
Where the deposition testimony of witnesses was obviously damaging to the defendant and it was especially critical that the jury be able to observe these witnesses on the stand, it was error to allow their testimony by deposition without any showing that the witnesses could not attend trial. Bennett v. State, 297 Ark. 115, 759 S.W.2d 799 (1988).
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).
Quashing Deposition.
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 dispute and, moreover, there was no 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: Mosby v. State, 249 Ark. 17, 457 S.W.2d 836 (1970); Sanders v. State, 276 Ark. 342, 635 S.W.2d 222 (1982); Shelton v. State, 287 Ark. 322, 699 S.W.2d 728 (1985); Bussard v. State, 300 Ark. 174, 778 S.W.2d 213 (1989).