Rule 43.Taking of Testimony
Last amended June 1, 2022 · Last verified July 13, 2026
Full Text of Rule 43
Amendment History
Amended February 10, 2005; amended May 19, 2022, effective June 1, 2022.
Reporter's Notes
Reporter’s Notes to Rule 43: 1. Prior to the 1975 amendments, FRCP 43 was entitled "Evidence" and provided the basic rule of evidence in civil cases in federal courts. The adoption of the Federal Rules of Evidence abrogated much of FRCP 43; hence its substantial revision in 1975. By enacting Act 723 of 1976, the Arkansas Legislature adopted the Uniform Rules of Evidence which are identical to the Federal Rules of Evidence insofar as the mode and order of interrogation and presentation of testimony are concerned. Hence, Rule 43 is identical to FRCP 43.
2. Sections (b) and (c) do not work any changes in Arkansas procedure. Superseded Ark. Stat. Ann. § 28-201 (Repl. 1962) permitted the use of affidavits upon motions although inherent in that statute was the right of the trial court to require oral or deposition testimony in lieu of affidavits.
3. Section (d) is identical to FRCP 43(f) and provides for the permissive appointment of an interpreter and the payment of his compensation. Rule 604 of the Uniform Rules of Evidence touches upon the use of interpreters and requires that he be subject to the provisions of the Uniform Rules concerning qualifications as an expert and the administration of an oath or affirmation that he will make a true translation.
Addition to Reporter’s Notes, 2005 Amendments: Rule 43(a) has been amended in two ways. Continuing the substantial identity between the Arkansas Rule and FRCP 43, both of these changes mirror 1996 revisions of the Federal Rule. First, the requirement that testimony be taken "orally" has been eliminated. The amendment allows testimony through non-verbal means (i.e., writing, sign language, or computer) from a witness who is unable to speak. Second, a new provision has been added. That provision gives the circuit court discretion to allow testimony in open court from a different location by contemporaneous transmission. Two important requirements must inform that discretion: good cause shown in compelling circumstances and appropriate safeguards.
Because our legal tradition strongly prefers testimony in the fact-finder’s presence, the inconvenience to a witness of attending trial will not establish good cause or compelling circumstances. The amended Rule contemplates some unexpected event that makes attendance by the witness very difficult. Examples of such events include an accident, an illness, or the need for an emergency hearing. When the witness’s absence can be reasonably anticipated, a deposition should be the preferred method of securing the testimony. See generally, Advisory Committee’s Note, 1996 Amendment to FRCP 43(a).
The amended Rule also requires the circuit court to adopt appropriate safeguards when it allows testimony by contemporaneous transmission. Those safeguards should ensure accurate identification of the witness, protect against influence by persons present with the witness, and secure accurate transmission of the testimony.
Plain-English Summary
Rule 43 sets the default format for presenting evidence at trial: witnesses testify live, in open court. That default gives way when another rule allows something different — Rule 88's provisions for virtual and blended proceedings are the most common example — or when a statute provides otherwise.
The remaining sections handle smaller, practical matters. Subsection (b) lets a witness affirm rather than swear an oath, accommodating anyone whose beliefs make a religious oath unworkable. Subsection (c) gives the court flexibility on motions that turn on disputed facts: rather than requiring a full evidentiary hearing every time, the judge can decide the motion on affidavits, or instead order oral testimony or a deposition if that seems the better way to resolve the factual dispute.
Subsection (d) lets the court appoint its own interpreter and set that interpreter's pay, which can come from court funds or be assigned to one or more of the parties, and which the court may ultimately tax as costs.
The open-court default in subsection (a) has been read narrowly over the years: a witness's inconvenience in attending trial does not, by itself, justify testimony by remote transmission. Courts look for something closer to an unexpected event — an accident, an illness, an emergency — before allowing a witness to testify from somewhere other than the courtroom, and even then the court is expected to put safeguards in place to confirm the witness's identity, guard against off-camera coaching, and ensure the transmission itself is accurate.
Frequently Asked Questions
Does a witness always have to testify in the courtroom?
That's the default under subsection (a), but it isn't absolute. Rule 88 allows testimony in virtual and blended proceedings, and other law can supply additional exceptions, including contemporaneous transmission from another location when the court finds good cause and compelling circumstances.
What counts as good cause for a witness to testify remotely instead of live?
Courts look for something more than the witness's inconvenience — an unanticipated event like an accident, illness, or the need for an emergency hearing is the kind of circumstance that supports remote testimony. If the witness's unavailability can be foreseen ahead of time, a deposition is the preferred way to preserve the testimony instead.
Can a witness affirm instead of swearing an oath?
Yes. Subsection (b) treats a solemn affirmation as the full equivalent of an oath anywhere the rules require one.
How does a court resolve a motion that depends on facts outside the pleadings?
Subsection (c) gives the court options: it may decide the motion on the parties' affidavits, or direct that the disputed facts be developed through oral testimony or a deposition instead.
Who pays for a court-appointed interpreter?
The court sets the interpreter's reasonable compensation, which comes from funds provided by law or from one or more of the parties as the court directs, and which the court may tax as costs in its discretion.