539 S.W.3d 581
Ark.2018Background
- Defendant Duncan faced trial in which the State disclosed a key prosecution witness (Ms. Gibson) on the eve of trial.
- Rule 17.1 required disclosure of the witness's name and address; Rule 17.2(a) requires the prosecutor to disclose "as soon as practicable."
- The circuit court accepted the State's assurance that the late disclosure was not intended to "sandbag" the defense and denied a continuance.
- Defense counsel interviewed Ms. Gibson before trial and argued he could adequately cross-examine her despite the late disclosure.
- On cross-examination, Ms. Gibson admitted to long-term marijuana use, a prior romantic relationship with the victim's father, a desire for "justice," a past arrest where no charge resulted, and a 2008 felony guilty plea for abuse of an adult that was later expunged.
- Justice Hart concurs in affirming the conviction but writes separately to clarify the rule of law about late witness disclosures and to emphasize that the decision does not endorse surprise prosecution witnesses on the eve of trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Late disclosure of prosecution witness and denial of continuance | Duncan: late disclosure prejudiced defense and warranted continuance or exclusion | State: disclosed name/address as required; denial proper because defense could prepare and represented no prejudice | Court (concurring): Affirmed — denial of continuance permissible where record shows no prejudice; here defense effectively impeached witness |
| Standard for exclusion/continuance when witness disclosed late | Duncan: relies on McEwing to argue exclusion where late notice prejudices trial | State: prejudice must be shown; absence of prejudice defeats claim | Held: Under McEwing a belated witness should be excluded only if the adverse party represents (and record shows) it could not adequately prepare; here no such prejudice shown |
| Role of prosecutorial timing under Rule 17.2(a) | Duncan: prosecutor should have disclosed sooner and court should have favored continuance to protect fair trial | State: did disclose and court accepted assurance there was no "sandbagging" | Held: Rule favors timely disclosure; concurring opinion criticizes late disclosure and suggests committee review but affirms due to lack of demonstrated prejudice |
| Whether this decision sanctions surprise witnesses | Duncan: argues remedy needed to discourage last-minute witnesses | State: contends no sanction necessary where no prejudice | Held: Concurrence expressly states decision does not sanction springing prosecution witnesses and cautions courts about docket management trumping fairness |
Key Cases Cited
- McEwing v. State, 366 Ark. 456, 237 S.W.3d 43 (2006) (a belatedly disclosed witness may be excluded if the adverse party shows it could not adequately prepare)
- Hickman v. State, 372 Ark. 438, 277 S.W.3d 217 (2008) (reversal for trial error requires showing of prejudice)