IN THE 

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA ex rel. WILLIAM G. MONTGOMERY, Maricopa 

County Attorney, Petitioner,

v.

THE HONORABLE MICHAEL W. KEMP, Judge of the SUPERIOR 

COURT OF THE STATE OF ARIZONA, in and for the County of 

MARICOPA, Respondent Judge,

DARREN CORTIZ DAVIS, Real Party in Interest.

No. 1 CA-SA 16-0031 

Petition for Special Action from the Superior Court in Maricopa County 

No. CR2014-001685-001 DT 

The Honorable Michael W. Kemp, Judge 

JURISDICTION ACCEPTED; RELIEF GRANTED 

COUNSEL 

Maricopa County Attorney’s Office, Phoenix 

By Amanda M. Parker 

Counsel for Petitioner 

Law Office of David L. Lockhart, Phoenix 

By David L. Lockhart 

Counsel for Real Party in Interest
STATE v. HON KEMP/DAVIS 

Opinion of the Court 

2

OPINION 

Judge Lawrence F. Winthrop delivered the opinion of the Court, in which 

Presiding Judge Peter B. Swann and Judge Donn Kessler joined. 

W I N T H R O P, Judge: 

¶1 In this special action, the State of Arizona challenges an order 

denying the State’s request for an alleged sexual assault victim (“E.P.”) to 

testify via two-way video conferencing during the trial of her alleged 

assailant, Real Party in Interest Darren Cortiz Davis. 

¶2 E.P. is an adult who currently lives in Montana and suffers 

from numerous mental and physical difficulties, including post-traumatic 

stress disorder (“PTSD”) and non-epileptic seizures. These difficulties are 

well-documented—so much so that a Montana trial court refused to compel 

E.P. to testify in Arizona, finding she would suffer psychological harm if 

required to be in the same room with Davis. E.P. has, however, indicated a 

willingness to testify before the jury and Davis from Montana, utilizing 

two-way video conferencing technology. Under the State’s requested trial 

accommodation, E.P. and Davis would hear each other and see each other, 

face-to-face, via two-way video, but would not be in the same room during 

E.P.’s testimony. Relying on the principles set forth in Maryland v. Craig, 

497 U.S. 836 (1990), and its progeny, we accept jurisdiction and grant the 

relief sought by the State. 

FACTS AND PROCEDURAL HISTORY 

¶3 A grand jury indicted Davis on two counts of sexual assault 

involving E.P., each a class 2 felony, in violation of Arizona Revised Statutes 

(“A.R.S.”) section 13-1406 (2010). The State alleges that, on January 2, 2003, 

Davis kidnapped then-twenty-year-old E.P., threatened to harm her and 

her family if she did not cooperate, physically assaulted her, and forced her 

to engage in two nonconsensual sexual acts. 

¶4 Sometime after the alleged assault, E.P. moved to Montana, 

where she is currently under the care of a psychiatrist and another medical 

doctor. E.P. suffers extreme mental and physical distress, and at some point 

in time, the prosecutor in Arizona became aware that, due to the trauma 
STATE v. HON KEMP/DAVIS 

Opinion of the Court 

3

and resultant illnesses, stress, and anxiety, E.P. likely would not voluntarily 

testify against Davis in Arizona. 

¶5 According to E.P.’s psychiatrist—who has treated E.P. since 

she was in high school—E.P. was in a fragile mental state before the alleged 

assaults, receiving psychiatric treatment for Major Depressive Disorder 

with psychotic features. In a letter to the prosecutor, the psychiatrist opined 

that, 

subsequent to her rape in Arizona, [E.P. suffers from] a PostTraumatic Stress Disorder that exacerbated the primary 

diagnosis. In addition, [E.P.] has a diagnosis of non-epileptic 

seizures and several other medical problems that are more 

likely than not related to her psychiatric disorders. 

Since her sexual assault, [E.P.] has been in and out of hospitals 

several times. She has made several attempts on her life. 

What could have been a reasonably promising prognosis 

from her depression has been altered by the assault. For years 

she was barely able to function. In the past year or two, 

fortunately, she has started going back to school, is making 

healthy friendships and living somewhat independently. In 

my professional opinion, returning to Arizona to testify 

against her assailant would almost certainly set her back 

several years in her recovery. My recommendation is that she 

not travel and not testify in front of her perpetrator. 

¶6 According to E.P.’s medical doctor for the past six years, E.P. 

presently experiences non-epileptic seizures and severe abdominal/pelvic 

pains as a result of her anxiety associated with testifying in court. The 

doctor has confirmed that E.P. ”has a history of complex partial seizures 

related to an assault in her past where she was beat about her head.” E.P. 

therefore experiences both real and pseudoseizures. E.P. also experiences 

severe migraines and has intractable emesis (repeated bouts of vomiting 

resistant to medical treatment) when her anxiety level is too high, and in 

the doctor’s opinion, E.P.’s severe anxiety issues and chronic pelvic pain are 

“a direct result of this past assault.” Moreover, E.P.’s chronic pelvic pain 

has resulted in other serious medical complications. In the doctor’s 

opinion, E.P. will likely experience severe stress, anxiety, and resultant 

pseudoseizures if she testifies in court in Davis’s presence.

¶7 The State filed a petition to secure E.P.’s appearance at trial by 

moving for the trial court to issue a certificate asking the State of Montana 
STATE v. HON KEMP/DAVIS 

Opinion of the Court 

4

to issue a subpoena to compel E.P.’s attendance under the Uniform Act to 

Secure the Attendance of Witnesses from Without a State in Criminal 

Proceedings. See A.R.S. §§ 13-4091 to –4096 (2010); MCA 46-15-112 to 46-

15-120 (2015). A certificate to secure the attendance of E.P. was filed in the 

Montana trial court, which ordered E.P. to show cause why an order should 

not be issued compelling her to attend the criminal prosecution of Davis. 

¶8 After a three-day evidentiary hearing—at which E.P. and her 

mother testified, and the court received the medical doctor’s most-recent 

written opinion—the Montana court ultimately found E.P. is a material and 

necessary witness in the State’s case against Davis, but that E.P. would 

experience undue hardship in the form of physical and psychological harm 

by being forced to testify in the same room with Davis. As a result, the 

court quashed the out-of-state subpoena and declined to order E.P. to 

attend any proceedings in Arizona. 

¶9 In Arizona, the State moved to take E.P.’s deposition in 

Montana (with counsel physically present or with defense counsel and 

Davis participating electronically) and asked the court to find E.P. 

unavailable and allow her video deposition to be admitted at trial in lieu of 

her live testimony. Davis objected to the taking of E.P.’s deposition and 

argued that if the court should allow E.P. to be deposed, he had the right 

under the Confrontation Clause of the Sixth Amendment to be physically 

present at the deposition. 

¶10 The trial court ruled that E.P. was an unavailable witness 

under Arizona Rule of Evidence 804(a)(5). The court further found that the 

State had made a good faith effort to produce E.P.; however, because Davis 

refused to waive his right to be present at the deposition, see Ariz. R. Crim. 

P. 15.3(e), the court ruled that the State could introduce E.P.’s testimony via 

video deposition only if the deposition was recorded in Davis’s physical 

presence. The State claims the trial court’s order requiring the State to 

transport Davis to Montana if the State deposed E.P. was unworkable 

because it ran counter to the Montana court’s conclusion that E.P.’s 

unavailability was based on the harm she would experience if forced to be 

in the same room as Davis. 

¶11 The State then filed a request for E.P. to testify via two-way 

video conferencing during trial, a means of testifying the State avows E.P. 

is amenable to accepting. The trial court denied the request. The State then 

filed this petition for special action. 
STATE v. HON KEMP/DAVIS 

Opinion of the Court 

5

JURISDICTION 

¶12 Special action jurisdiction is proper when an issue is one of 

first impression, involves a purely legal question, is of statewide 

importance, or is likely to arise again. State v. Bernini, 230 Ariz. 223, 225, 

¶ 5, 282 P.3d 424, 426 (App. 2012); State ex rel. Romley v. Martin, 203 Ariz. 46, 

47, ¶ 4, 49 P.3d 1142, 1143 (App. 2002); Vo v. Superior Court, 172 Ariz. 195, 

198, 836 P.2d 408, 411 (App. 1992). The State asks us to resolve an issue of 

first impression in Arizona—the constitutionality of utilizing two-way 

video testimony at trial under the Confrontation Clause—that is a legal 

issue of statewide importance and likely to recur. Moreover, the State has 

no equally plain, speedy, or adequate remedy by appeal. See Ariz. R.P. 

Spec. Act. 1(a); Lindsay R. v. Cohen, 236 Ariz. 565, 566-67, ¶ 5, 343 P.3d 435, 

436-37 (App. 2015). Accordingly, we accept special action jurisdiction. 

ANALYSIS

¶13 The State argues the trial court erred as a matter of law by not 

applying the Maryland v. Craig standard to the State’s requested 

accommodation for E.P. to testify via two-way video during trial. See 497 

U.S. at 849 (recognizing that the Confrontation Clause’s preference for faceto-face confrontation at trial “must occasionally give way to considerations 

of public policy and the necessities of the case” (quoting Mattox v. United 

States, 156 U.S. 237, 243 (1895))). 

¶14 In general, we review a trial court’s orders in managing 

proceedings for an abuse of discretion. Gamboa v. Metzler, 223 Ariz. 399, 

402, ¶ 13, 224 P.3d 215, 218 (App. 2010). We review de novo, however, issues 

involving the Confrontation Clause. See State v. Bronson, 204 Ariz. 321, 324, 

¶ 14, 63 P.3d 1058, 1061 (App. 2003). 

¶15 The Sixth Amendment to the United States Constitution 

guarantees that, in all criminal prosecutions, the accused has the right “to 

be confronted with the witnesses against him.” U.S. Const. amend. VI. The 

Confrontation Clause has been construed as “guarantee[ing] the defendant 

a face-to-face meeting with witnesses appearing before the trier of fact.” 

Coy v. Iowa, 487 U.S. 1012, 1016 (1988). Its central concern “is to ensure the 

reliability of the evidence against a criminal defendant by subjecting it to 

rigorous testing in the context of an adversary proceeding.” Craig, 497 U.S. 

at 845. Face-to-face in-court testimony serves several purposes: (1) it 

“ensures the reliability of the evidence by allowing the trier of fact to 

observe the demeanor, nervousness, expressions, and other body language 

of the witness”; (2) it “impresses upon the witness the seriousness of the 
STATE v. HON KEMP/DAVIS 

Opinion of the Court 

6

matter and ensures that statements are given under oath”; and (3) it “helps 

assure the identity of the witness, that the witness is not being coached or 

influenced during testimony, and that the witness is not improperly 

referring to documents.” United States v. Hamilton, 107 F.3d 499, 503 (7th 

Cir. 1997). The United States Supreme Court has emphasized the 

fundamental role face-to-face confrontation plays in judicial proceedings, 

noting “there is something deep in human nature that regards face-to-face 

confrontation between accused and accuser as ‘essential to a fair trial in a 

criminal prosecution.’” Coy, 487 U.S. at 1017 (quoting Pointer v. Texas, 380 

U.S. 400, 404 (1965)). 

¶16 While recognizing the Constitution’s preference for face-toface confrontation, however, the Supreme Court has clarified that the right 

to face-to-face confrontation is not absolute. Craig set forth a test for 

abridging the preference for face-to-face confrontation with video 

testimony: the State must show that (1) the denial of face-to-face 

confrontation is necessary to further an important public policy; (2) the 

reliability of the testimony is otherwise assured; and (3) there is a casespecific showing of necessity for the accommodation. Id. at 850. Although 

Davis notes that Craig involved one-way closed circuit television and child 

witnesses, including the alleged victim, who could not see or hear the 

defendant, nothing in its holding suggests its application is limited to such 

cases. See People v. Wrotten, 923 N.E.2d 1099, 1103 (N.Y. 2009) (“Nowhere 

does Craig suggest that it is limited to child witnesses or that a ‘public 

policy’ basis for finding necessity must be codified. Indeed, federal courts 

have permitted live video testimony in a variety of circumstances, 

including instances where public policy is implicated by a key witness too 

ill to appear in court . . . .” (citing Horn v. Quarterman, 508 F.3d 306, 317-18 

(5th Cir. 2007); United States v. Benson, 79 Fed. Appx. 813, 820-21 (6th Cir. 

2003); United States v. Gigante, 166 F.3d 75, 79 (2d Cir. 1999))). 

¶17 Since deciding Craig, the Supreme Court has not further 

examined the constitutionality of remote video testimony or considered 

new types of technology available to facilitate remote testimony, such as the 

two-way video conferencing the State seeks to use in this case that would 

allow E.P. and Davis to hear and see one another simultaneously. See State 

v. Rogerson, 855 N.W.2d 495, 499-500 (Iowa 2014); see also Wrotten v. New 

York, 560 U.S. 959, 959 (2010) (Sotomayor, J., respecting denial of petition 

for writ of certiorari) (noting that the question of and standards for the use 

of two-way video testimony in a petitioner’s trial “is not obviously 

answered by Maryland v. Craig”). Moreover, no Arizona opinion has 

addressed the question of allowing adult witnesses to testify using two-way 

video technology. 
STATE v. HON KEMP/DAVIS 

Opinion of the Court 

7

¶18 Numerous federal and state courts have extended Craig to the 

use of two-way video testimony for adult witnesses. See, e.g., United States 

v. Yates, 438 F.3d 1307, 1313 (11th Cir. 2006) (acknowledging Craig as the 

proper test for the admissibility of two-way video conference testimony 

and noting agreement with the Sixth, Eighth, Ninth, and Tenth Circuits); 

Rogerson, 855 N.W.2d at 506-07 (Iowa Supreme Court approving the use of 

two-way video testimony for adult witnesses, provided the Craig factors are 

met); White v. State, 116 A.3d 520, 540-49 (Md. Ct. Spec. App. 2015) 

(applying Craig to allow a witness in a cold case to testify by two-way video 

because it would be “cruel and unnecessary to require her to fly” given her 

health concerns); People v. Buie, 775 N.W. 817, 825 (Mich. Ct. App. 2009) 

(applying Craig to two-way video testimony, “[l]ike the majority of federal 

courts that have examined this issue”); City of Missoula v. Duane, 355 P.3d 

729, 734 (Mont. 2015) (applying Craig to allow the two-way video testimony 

of a doctor whose testimony in three trials would cause a prohibitive 

expense to the city and place a significant burden on the doctor); 

Commonwealth v. Atkinson, 987 A.2d 743, 750-51, ¶¶ 16-17 (Pa. Super. Ct. 

2009) (applying Craig and concluding that the defendant’s right to 

confrontation had been violated because expediting disposition of the case 

was an insufficient reason for allowing the use of two-way video 

testimony); Bush v. State, 193 P.3d 203, 215-16, ¶¶ 52-53 (Wyo. 2008) 

(applying Craig to allow a witness’s testimony via two-way video “to 

further the important public policy of preventing further harm to his 

already serious medical condition”).

¶19 Assuming that two-way video testimony is not the equivalent 

of face-to-face confrontation,1 we adopt the Craig standard for the use of 

two-way video testimony and apply the Craig factors to the State’s 

requested accommodation. The use of two-way video conferencing can 

satisfy a defendant’s right to face-to-face confrontation in certain limited 

circumstances like those present here. 

 

1 See State v. Smith, 308 P.3d 135, 137 (N.M. Ct. App. 2013) (citing 

Harrell v. State, 709 So. 2d 1364, 1368–69 (Fla. 1998) (declining to find live 

satellite testimony to be equivalent to live, face-to-face testimony)). But see 

Gigante, 166 F.3d at 81 (holding that when a trial court used a two-way video 

system, face-to-face confrontation was preserved and it was therefore 

unnecessary to enforce the Craig standard); United States v. Gigante, 971 F. 

Supp. 755, 759 (E.D.N.Y. 1997) (“[T]he [two-way closed circuit television 

procedure] proposed by the government in this case satisf[ies] fully the 

requirements of the Constitution . . . .”).
STATE v. HON KEMP/DAVIS 

Opinion of the Court 

8

¶20 Applying Craig, we conclude that the strong preference for 

face-to-face confrontation must give way in the special circumstances of this 

case to considerations of public policy and the necessities of the case. The 

State’s requested accommodation is necessary to further two important 

public policies: protecting the rights of a vulnerable alleged sexual assault 

victim who has been ruled to be outside Arizona’s subpoena power and 

preserving society’s interest in prosecuting accused sexual offenders. See 

Michigan v. Lucas, 500 U.S. 145, 149-50 (1991) (recognizing Michigan’s rape

shield law furthers the legitimate state interests of protecting a sexual 

assault victim from surprise, harassment, and unnecessary invasions of 

privacy); United States v. Knights, 534 U.S. 112, 121 (2001) (recognizing the 

government has a demonstrated interest in apprehending criminal law 

violators, thereby protecting potential victims). Moreover, consistent with 

Craig, protecting a victim-witness’s physical and mental health is a 

legitimate public policy. See, e.g., Kramer v. State, 277 P.3d 88, 93-94, ¶ 19 

(Wyo. 2012); see also Ariz. Const. art. 2, § 2.1(A)(1) (providing that crime 

victims have the constitutional right “to be free from intimidation, 

harassment, or abuse, throughout the criminal justice process”).

¶21 In this case, Arizona and Montana trial courts have already 

found E.P. is a material and necessary witness, and realistically, without 

E.P.’s testimony, there will be no trial. The Montana court has already 

found after hearing evidence that requiring E.P. to testify with Davis 

present in the same room will cause E.P. to suffer severe emotional and 

mental trauma with resultant seizures, and it appears that, at this point, no 

one questions that E.P. will suffer grave harm if required to testify in 

person. Thus, without the accommodation for E.P. to testify via two-way 

video during trial, the State will be forced to choose between protecting 

E.P.’s mental and physical health and constitutional rights, and preserving 

Arizona’s interest in prosecuting and punishing persons who have 

allegedly committed sexual offenses.2 Because an alternative reliable 

means of protecting Davis’s confrontation rights exists in this case, the State 

should not be forced to choose. The State’s requested accommodation 

clearly furthers important public policy concerns. 

¶22 The requested two-way video conferencing at issue here 

should also ensure reliable testimony. Under the State’s requested 

 

2 Moreover, as the State notes, automatic denial of such a requested 

trial accommodation may send the message that if a perpetrator of sexual 

assault causes extreme emotional, mental, and physical harm to his or her 

victim, the perpetrator is less likely to be prosecuted and convicted. 
STATE v. HON KEMP/DAVIS 

Opinion of the Court 

9

accommodation, the video will present a “real time” image of E.P. to Davis 

and the jury, giving an impression of E.P.’s physical presence and 

demeanor at trial. The two-way video will also allow the trial court to rule 

on objections as they arise during E.P.’s testimony, allow E.P. to answer any 

jury questions,3 and allow Davis to communicate with defense counsel 

during the cross-examination of E.P., just as he would be able to do if E.P. 

were physically present. The State can arrange for E.P. to be placed under 

oath in Montana and ensure E.P.’s testimony is broadcast in a way that 

would make it impossible for her to improperly refer to documents during 

her testimony. Most importantly, E.P. will be able to see Davis when she 

testifies, and Davis will be able to see her. We conclude in these limited 

circumstances that allowing E.P. to testify via simultaneous two-way video 

conferencing will not alter the reliability of her testimony or offend Davis’s 

right to confrontation. 

¶23 Finally, the State has adequately demonstrated case-specific 

necessity for the requested accommodation. See Smith, 308 P.3d at 138-39 

(requiring an adequate showing of necessity and stating that mere 

inconvenience to a witness is insufficient under Craig to supplant face-toface testimony); see also State ex rel. Montgomery v. Padilla, 1 CA-SA 16-0017, 

1 CA-SA 16-0027, 2016 WL 1063284, at *3, ¶¶ 9-11 (Ariz. App. Mar. 17, 2016) 

(concluding the heightened standard of clear and convincing evidence of 

an individualized and case-specific need for an accommodation applied to 

minor victim witnesses under A.R.S. § 13-4253 (2010)); cf. Rogerson, 855 

N.W.2d at 506-07 (recognizing that most courts “seem to require some 

impediment to testifying beyond mere unwillingness to travel,” and noting 

that a general consensus exists “that mere convenience, efficiency, and costsaving are not sufficiently important”). In this case, E.P. is beyond the 

State’s subpoena power, and forcing her to testify in Davis’s physical 

presence—whether in a deposition in Montana or at trial in Arizona—

would result in severe mental and physical trauma to E.P. Two medical 

professionals have opined that E.P. will suffer a myriad of physical ailments 

related to her PTSD—including seizures, severe abdominal/pelvic pains, 

severe migraines, and intractable emesis—if she is required to testify in 

Davis’s physical presence, and the Montana trial court has found that 

forcing E.P. to testify in Davis’s presence will cause her to suffer undue 

hardship due to the gravity of the ailments related to the PTSD and the 

associated stress, anxiety, and severe psychological harm. This case 

 

3 Arizona Rule of Criminal Procedure 18.6(e) provides for the 

submission of juror questions to the court or witnesses during trials. 
STATE v. HON KEMP/DAVIS 

Opinion of the Court 

10

presents extraordinary circumstances, and a compelling case-specific 

necessity that justifies the State’s requested accommodation. 

CONCLUSION 

¶24 We adopt the Craig test, and applying it to this case, conclude 

that Davis’s confrontation rights can be satisfied through the use of twoway video testimony. Accordingly, we accept jurisdiction of the petition 

for special action and grant relief. The trial court’s order is reversed and 

the matter is remanded with directions to allow the State’s requested trial 

accommodation.