Ark. Code Ann. § 16-89-115 (2020)
Documents — Production where in possession of state
- In any criminal prosecution brought by the State of Arkansas, no statement or report in the possession of the state which was made by a state witness or prospective state witness, other than the defendant, to an agent of the state shall be subject to subpoena, discovery, or inspection until the witness has testified on direct examination in the trial of the case.
- After a witness called by the state has testified on direct examination, the court on motion of the defendant shall order the state to produce any statement, as defined in subsection (e) of this section, of the witness in the possession of the state which relates to the subject matter as to which the witness has testified. If the entire contents of the statement relate to the subject matter of the testimony of the witness, the court shall order it to be delivered directly to the defendant for his or her examination and use.
-
- If the state claims that any statement ordered to be produced under this section contains matter which does not relate to the subject matter of the testimony of the witness, the court shall order the state to deliver the statement for the inspection of the court in camera.
- Upon the delivery, the court shall excise the portions of the statement which do not relate to the subject matter of the testimony of the witness.
- With the material excised, the court shall then direct delivery of the statement to the defendant for his or her use.
- If, pursuant to the procedure, any portion of the statement is withheld from the defendant and the defendant objects to the withholding, and the trial is continued to an adjudication of the guilt of the defendant, the entire text of the statement shall be preserved by the state and, in the event the defendant appeals, shall be made available to the appellate court for the purpose of determining the correctness of the ruling of the trial judge.
- Whenever any statement is delivered to a defendant pursuant to this section, the court, in its discretion and upon application of the defendant, may recess proceedings in the trial for such time as it may determine to be reasonably required for the examination of the statement by the defendant and his or her preparation for its use in the trial.
- If the state elects not to comply with an order of the court under subsection (b) or (c) of this section to deliver to the defendant any statement, or portion thereof, as the court may direct, the court shall strike from the record the testimony of the witness and the trial shall proceed unless the court in its discretion shall determine that the interests of justice require that a mistrial be declared.
-
The term “statement”, as used in this section in relation to any witness called by the state, means:
- A written statement made by the witness and signed or otherwise adopted or approved by him or her; or
- A stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by the witness to an agent of the state and recorded contemporaneously with the making of the oral statement.
- The provisions of this section shall be applicable to the district, city, and circuit courts of this state.
History. Acts 1971, No. 381, §§ 3, 4; A.S.A. 1947, §§ 43-2011.3, 43-2011.4; Acts 2003, No. 1185, § 211; 2003, No. 1185, §§ 211, 212.
Amendments. The 2003 amendment by No. 1185, § 211, substituted “the district, city” for “municipal” in (f).
The 2003 amendment by No. 1185, § 212, substituted “the district, city” for “municipal, police” in (f).
Case Notes
Appeals.
Evidence insufficient to find that the trial court erred in not requiring the prosecutor to provide defendant with previous statements made by a police officer who testified for the state. Parker v. State, 292 Ark. 421, 731 S.W.2d 756 (1987).
Violation of this section was harmless where, although the trial court erred in refusing to order the state to produce copies of the statements for defendant, the trial court allowed the defendant's counsel to examine the statements and gain the full knowledge of their contents; thus reversal was not required. Winfrey v. State, 293 Ark. 342, 738 S.W.2d 391 (1987).
Evidence was sufficient to find that error was not harmless beyond a reasonable doubt where the trial court ruled that the defendant's attorney could not use the prior inconsistent statements of the victims for impeachment, and thus convictions had to be reversed and remanded for violations of the defendant's rights under the confrontation clause of U.S. Const. Amend. 6. Winfrey v. State, 293 Ark. 342, 738 S.W.2d 391 (1987).
Failure of law enforcement officer to maintain his handwritten notes of eyewitness statements regarding the incident did not warrant mistrial. Wood v. State, 20 Ark. App. 61, 724 S.W.2d 183 (1987).
Although a witness's statement relating to pretrial identification would be subject to inspection upon the defendant's motion after that witness had testified at trial under this section, where defendant made a pretrial motion to exclude the witness's testimony on the ground that he had not been informed through discovery that the witness had identified him in a lineup, the information requested by the defendant was not subject to discovery until after the witness testified; therefore, the trial court did not err in denying the motion to exclude the witness's in-court identification. Shuffield v. State, 23 Ark. App. 167, 745 S.W.2d 630 (1988).
In a sexual abuse/rape case involving a child victim who recanted the initial allegations and later reaffirmed them, the appellate court was unable to reach a decision on the issue of whether the circuit court erred by denying defendant's request for the prosecutor's notes from an interview with the child victim where the circuit court did not conduct an in camera hearing or place the notes under seal for appellate review; thus, the appellate court had to remand for further proceedings. Harper v. State, 2019 Ark. App. 163, 573 S.W.3d 596 (2019).
Harmless error.
Failure, if any, to comply with this section held harmless. Hill v. State, 331 Ark. 312, 962 S.W.2d 762, cert. denied, 525 U.S. 860, 119 S. Ct. 145, 142 L. Ed. 2d 118 (1998).
Prior Statement.
Where the prosecution was unable to produce a previous statement given to the prosecution by the prosecuting witness, it was error for the trial court to require defense attorney to proceed with his cross-examination of the witness without the statement, but such error was held harmless. Rush v. State, 252 Ark. 814, 481 S.W.2d 696 (1972).
In a case involving the over-possession of pseudoephedrine, the trial court did not err by failing to strike the testimony of a witness based on an alleged failure to provide defendant with her written statement to police because it was unclear from the record if a written statement ever existed; moreover, even if it did exist, defendant's objection after the state rested was untimely. Lytle v. State, 91 Ark. App. 243, 209 S.W.3d 421 (2005).
Prosecutor's Notes.
Circuit court was not required to order the State to disclose the prosecutor's notes to defendant under this section where the notes from the interview of the victim were not “substantially verbatim”, but contained opinions and observations of the victim's behavior and demeanor, and clearly did not encompass everything the victim said. Harper v. State, 2020 Ark. App. 4 (2020).
Time of Producing Statement.
Neither ARCrP 17.1(a) nor this section requires the prosecutor to produce written statements from a witness before the trial. Brown v. State, 315 Ark. 466, 869 S.W.2d 9, 1994 Ark. LEXIS 11 (1994).
Witnesses Not Called.
Where the witness was not called by the state there was no obligation to supply his statement, unless it contained information which negates the defendant's guilt. Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1986), cert. denied, 484 U.S. 872, 108 S. Ct. 202 (1987).
Work Product.
There simply is no “work product” exception for the production of witnesses' statements in subsections (b) and (e). Winfrey v. State, 293 Ark. 342, 738 S.W.2d 391 (1987).
Among the factors to be taken into account in deciding whether a statement is substantially verbatim (not precisely verbatim) are the extent to which it conforms to the language of the witness, the length of the written statement in comparison to the length of the interview, whether quotations may be out of context, and the lapse of time between the interview and the transcription, which need be only contemporaneously, not simultaneously made. Winfrey v. State, 293 Ark. 342, 738 S.W.2d 391 (1987).
Cited: Snell v. Lockhart, 791 F. Supp. 1367 (E.D. Ark. 1992).