Opinion No. ( 2004 )

The Honorable Henry H. Boyce Prosecuting Attorney Third Judicial District 208 Main Street, Suite 31 Newport, AR 72112

Dear Mr. Boyce:

I am writing in response to your request for my opinion on the following questions:

1. Is a party, either the state or the defendant, in a criminal case required to tender a witness fee and mileage to a lay witness?

2. If the answer to question 1 is "yes," is the witness required to attend if the fee and mileage is not paid?

3. If the party subpoenaing the witness is represented by the Public Defender Commission, are they required to pay the witness fee pursuant to A.C.A. 16-87-212?

You report that these questions have arisen in a pending capital murder case in which defense counsel has questioned your payment of a $30 per diem witness fee, mileage and lodging for out-of-state witnesses. You request that I reply before a preliminary hearing scheduled for May 6, 2004.

RESPONSE

I regret that I am unable to answer these questions, which you report are corollary matters currently subject to adjudication by the circuit court in a pending murder trial. As a matter of long-standing practice, this executive office refrains from issuing opinions on matters subject to adjudication by a court in pending litigation. However, I can and will attach for your information a copy of Ark. Op. Att'y Gen. No. 91-301, in which one of my predecessors opined on issues closely related to those set forth in your request.

Please let me know if I can be of assistance in any other respect.

Assistant Attorney General Jack Druff prepared the foregoing opinion, which I hereby approve.

Sincerely,

MIKE BEEBE Attorney General

MB:JD/cyh

Enclosure