In re Ark. Sup. Ct. Comm. on Crim. Prac. - Proposed Rule Changes

2014 Ark. 120

• Court: Supreme Court of Arkansas
• Decided: March 13, 2014
• Status: Published

Opinion

Cite as 2014 Ark. 120

SUPREME COURT OF ARKANSAS

Opinion Delivered March 13, 2014 IN RE ARKANSAS SUPREME COURT COMMITTEE ON CRIMINAL PRACTICE—PROPOSED RULE CHANGES

PER CURIAM

The Arkansas Supreme Court Committee on Criminal Practice has submitted several

proposals to the court as set out in detail below. We express our gratitude to the members of

the Committee for their work. These proposals are being published for comment, and the

comment period shall end on May 1, 2014. (New language is underlined in the rules set out

below.)

Comments should be submitted in writing to: Clerk of the Arkansas Supreme Court,

Attention: Criminal Practice Committee, Justice Building, 625 Marshall Street, Little Rock,

AR 72201.

Arkansas Rules of Criminal Procedure

1. A new rule was proposed requiring that a record be made of any waiver of the right to

testify.

Rule 33.8. Record of waiver of right to testify.

If in a trial the defendant waives the right to testify in his or her own defense,

the court shall determine on the record that the defendant has been advised of Cite as 2014 Ark. 120

the right to testify and has waived that right. Such a determination shall not be

made by inquiry directed to the defendant and shall not be made in the

presence of the jury.

Reporter’s Note, 2014.

This rule was added in 2014 in response to the Supreme Court’s decisions in Williams

v. State, 2011 Ark. 489 and Sartin v. State, 2012 Ark. 155. The rule is satisfied if

defense counsel affirmatively states on the record that he or she has advised the defendant

of the right to testify. If defense counsel does not so state, the trial court should determine

by inquiry addressed to counsel that the defendant has been so advised.

2. Amendments were proposed to Arkansas Rules of Criminal Procedure 7.1 and 13.1

regarding issuing of arrest warrants and search warrants based on affidavits received by

electronic means.

Rule 7.1. Arrest with a warrant: basis for issuance of arrest warrant.

(a) A judicial officer may issue an arrest warrant for a person who has failed to

appear in response to a summons or citation.

(b) In addition, a judicial officer may issue a warrant for the arrest of a person

if, from affidavit, recorded testimony, or other documented information, it

appears there is reasonable cause to believe an offense has been committed and

the person committed it. A judicial officer may issue a summons in lieu of an

arrest warrant as provided in Rule 6.1. An affidavit or other documented 2 Cite as 2014 Ark. 120

information in support of an arrest warrant may be transmitted to the issuing

judicial officer by facsimile or by other electronic means. Recorded testimony

in support of an arrest warrant may be received by telephone or other

electronic means provided the issuing judicial officer first administers an oath

by telephone or other electronic means to the person testifying in support of

the issuance of the warrant.

(c) A judicial officer who has determined that an arrest warrant should be issued

may authorize the clerk of the court or his deputy to issue the warrant.

* * *

In 2014, subsection (b) was amended to address the transmission by electronic means of affidavits

in support of a warrant.

Rule 13.1. Issuance of search warrant.

(a) A search warrant may be issued only by a judicial officer.

(b) The application for a search warrant shall describe with particularity the

persons or places to be searched and the persons or things to be seized, and shall

be supported by one (1) or more affidavits or recorded testimony under oath

before a judicial officer particularly setting forth the facts and circumstances

tending to show that such persons or things are in the places, or the things are

3 Cite as 2014 Ark. 120

in possession of the person, to be searched. If an affidavit or testimony is based

in whole or in part on hearsay, the affiant or witness shall set forth particular

facts bearing on the informant’s reliability and shall disclose, as far as practicable,

the means by which the information was obtained. An affidavit or testimony

is sufficient if it describes circumstances establishing reasonable cause to believe

that things subject to seizure will be found in a particular place. Failure of the

affidavit or testimony to establish the veracity and bases of knowledge of

persons providing information to the affiant shall not require that the

application be denied, if the affidavit or testimony viewed as a whole, provides

a substantial basis for a finding of reasonable cause to believe that things subject

to seizure will be found in a particular place.

(c) An application for a search warrant and the affidavit in support of the search

warrant may be transmitted to the issuing judicial officer by facsimile or by

other electronic means. Recorded testimony in support of a search warrant

may be received by telephone or other electronic means provided the issuing

judicial officer first administers an oath by telephone or other electronic means

to the person testifying in support of the issuance of the warrant. After signing

a search warrant, the judicial officer issuing the warrant may transmit a copy of

the warrant by facsimile or other electronic means to the applicant for the

warrant. The original signed search warrant shall be retained by the judicial

officer issuing the warrant and shall be filed with the record of the proceeding 4 Cite as 2014 Ark. 120

as provided in Rule 13.4(c).

(c) (d) Before acting on the application, the judicial officer may examine on

oath the affiants or witnesses, and the applicant and any witnesses he may

produce, and may himself call such witnesses as he deems necessary to a

decision. He shall make and keep a fair written summary of the proceedings

and the testimony taken before him, except that if sworn testimony alone is

offered in support of the application, such testimony shall be recorded pursuant

to subsection (b) hereof.

(d) (e) If the judicial officer finds that the application meets the requirements

of this rule and that, on the basis of the proceedings before him, there is

reasonable cause to believe that the search will discover persons or things

specified in the application and subject to seizure, he shall issue a search warrant

based on his finding and in accordance with the requirements of this rule. If he

does not so find, the judicial officer shall deny the application.

(e) (f) The proceedings upon application for a search warrant shall be conducted

with such secrecy as the issuing judicial officer deems appropriate to the

circumstances.

In 2014, subsection (c) was added to address the transmission by electronic means of affidavits

in support of a warrant. The remaining subsections were redesignated (d) - (f).