13-4085. Release or detention of material
witness; depositions
A. If it appears from an affidavit filed by a party that the testimony of a person
is material in a criminal proceeding pursuant to section 13-2319 and if it is shown that
it may become impracticable to secure the presence of the person by subpoena because of
the immigration status of the person, the court may order the temporary detention of the
person and treat the person according to the release provisions under section 13-3967. A
material witness may not be detained because of the inability of the witness to comply
with any condition of release if the testimony of the witness can be secured adequately
by deposition and if further detention of the witness is not necessary to prevent a
failure of justice. The release of a material witness may be delayed for a reasonable
period of time until the deposition of the witness can be taken pursuant to this section
or the Arizona rules of criminal procedure.
B. A material witness may be detained by a law enforcement agency. If the material
witness is a juvenile, the material witness may be detained in a juvenile detention
facility or a jail pursuant to section 8-305. A witness shall not be detained for more
than twenty-four hours unless an affidavit is filed with the court pursuant to subsection
A of this section.
C. A material witness who is being detained pursuant to subsection A of this
section may be kept in a physically separate section or be administratively segregated
from any person who is charged with, adjudicated delinquent for or convicted of a
criminal offense.
D. On the motion of any party or a material witness who has been detained pursuant
to subsection A of this section, the court may order the examination of the material
witness unless the material witness is the defendant or a person who is excluded by rule
39(b), Arizona rules of criminal procedure, on oral deposition. The deposition shall be
noticed and taken pursuant to rule 15.3, Arizona rules of criminal procedure.
E. The witness may be detained for a period of up to seven days after entry of the
order, except that if at any time during the period of detainment it becomes reasonably
feasible to conduct the examination, the examination shall be conducted immediately and
the court may order the witness to be released immediately after signing the deposition
under oath, waiving the signature or otherwise affirming the factual accuracy of the
matters set forth in the deposition.
F. A deposition that is taken pursuant to this section may be used at trial and at
any pretrial proceeding pursuant to rule 19.3, Arizona rules of criminal procedure.
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