State v. Johnson: Montana Clarifies that Two‑Way Video Testimony Requires Craig Necessity and Reliability—Not Witness Unavailability or Prosecutorial Good Faith

Introduction

In State v. Johnson (2026 MT 32), the Supreme Court of Montana affirmed Stephen Joseph Johnson’s convictions for Criminal Mischief, Burglary, and Bail Jumping. The appeal did not challenge the sufficiency of the evidence; instead, it raised a constitutional trial-rights question: whether the District Court violated Johnson’s confrontation rights by allowing a key State witness, Eugene Maw, to testify live via two-way videoconferencing.

The underlying prosecution arose after a GMC Terrain reported missing was spotted with Johnson driving it, followed by a crash causing property damage and Johnson’s flight into Maw’s home/garage area, where he was discovered and arrested. Trial was delayed roughly 18 months, in part due to Johnson’s failures to appear. During that time, Maw (age 86) moved to Burbank, Washington (about 450 miles away), became responsible for getting two young adopted children to and from the school bus, and regularly transported his wife to dialysis. The State sought an order allowing Maw’s remote testimony; the defense objected on confrontation grounds.

The case presented a focused doctrinal issue with broader implications: what constitutional test governs real-time two-way video testimony, and whether Montana precedent had mistakenly added requirements (witness “unavailability” and prosecutorial “good faith” efforts) that do not appear in the governing U.S. Supreme Court framework.

Summary of the Opinion

The Court held that allowing Maw to testify by live, two-way videoconference did not violate the Sixth Amendment Confrontation Clause or Article II, Section 24 of the Montana Constitution. Applying Maryland v. Craig, the Court concluded:

  • Necessity / important public policy (case-specific): Maw’s extraordinary caregiving obligations, age, winter travel burdens, distance, and Johnson’s role in delaying trial supported a finding that denying in-person face-to-face confrontation was necessary to further important public policies beyond mere efficiency.
  • Reliability / hallmarks of confrontation preserved: Maw testified under oath, was cross-examined without meaningful technical barriers, and the jury could observe demeanor in real time.

Critically, the Court also clarified Montana law by rejecting the notion—suggested in State v. Strommen and State v. Hogues—that the first prong of the Craig test requires a showing that the witness is “unavailable,” or that the prosecution must show “good faith” efforts to secure in-person attendance, when the witness is available to testify live by two-way video. Those concepts, the Court explained, belong to hearsay/doctrine contexts like Ohio v. Roberts and Crawford v. Washington, not to the specific face-to-face question governed by Craig.

Analysis

Precedents Cited

1) The controlling framework: Maryland v. Craig

Maryland v. Craig, 497 U.S. 836 (1990), supplied the governing two-part test for dispensing with physical face-to-face confrontation: (1) the denial must be necessary to further an important public policy, supported by case-specific findings; and (2) the procedure must preserve the confrontation clause’s truth-seeking and symbolic purposes by maintaining the traditional indicia of reliability (oath, cross-examination, and demeanor observation). State v. Johnson both applies Craig and uses it to correct doctrinal drift in later Montana cases.

2) The demand for individualized necessity: Coy v. Iowa and Bourjaily v. United States

The Court relied on Coy v. Iowa, 487 U.S. 1012 (1988), for the principle that face-to-face confrontation is a constitutional preference and that generalized legislative findings are not enough when creating exceptions not firmly rooted in confrontation jurisprudence. It also quoted Coy’s use of Bourjaily v. United States, 488 U.S. 171 (1987), underscoring the need for “something more” than generalized findings—hence Craig’s insistence on individualized, case-specific necessity. In Johnson, Maw’s unique circumstances (age, caregiving duties, travel distance and season, and defendant-caused delay) provided the individualized showing that Coy found missing in blanket statutory approaches.

3) Montana confrontation jurisprudence on remote testimony

The Court situated its decision within a line of Montana cases addressing remote testimony and the pandemic-era expansion of videoconferencing:

  • State v. Whitaker (2024 MT 255) and State v. Walsh (2023 MT 33) are cited for the standard of review and for pandemic-era applications where public health and extreme logistical burdens constituted important public policy considerations supporting two-way video testimony. Johnson uses these cases to illustrate a key point: witnesses may be “available” in a literal sense yet still justify remote testimony under Craig based on necessity and public policy.
  • State v. Bailey (2021 MT 157) and State v. Mercier (2021 MT 12) represent the counterweight: remote testimony cannot be justified by “judicial economy, added expense, or inconvenience alone.” Johnson reaffirms that baseline but distinguishes Maw’s circumstances as qualitatively different from mere cost-saving.
  • City of Missoula v. Duane (2015 MT 323) is used to show that live, two-way videoconferencing can preserve confrontation “hallmarks” better than audio-only alternatives, and that significant burden on an out-of-state witness can support necessity findings. Johnson draws on Duane to reinforce that the confrontation inquiry is functional as well as formal: what matters is whether adversarial testing and demeanor assessment are meaningfully preserved.
  • State v. Bonamarte (2009 MT 243) is cited (via Duane) as an example of inferior confrontation substitutes—telephonic testimony as a “disembodied voice”—highlighting why real-time video is constitutionally distinct.
  • State v. Martell (2021 MT 318) is invoked (via Whitaker) for the repeated admonition that efficiency and expense alone are insufficient public policies to override face-to-face confrontation.

4) Montana constitutional breadth: State v. Weik and State v. Stock

The Court acknowledged that Montana’s confrontation clause text (“face to face”) can afford broader protection than the federal clause. It cited State v. Weik (2018 MT 213) and State v. Stock (2011 MT 131) to reiterate two propositions: (1) Montana can provide greater protection; but (2) even with “face-to-face” language, Montana precedent has not treated literal physical face-to-face contact as invariably required. In Johnson, the parties did not ask the Court to interpret the state provision differently, so the Court applied the same Craig-based framework.

5) Correcting the “unavailability/good faith” overlay: State v. Strommen, State v. Hogues, Ohio v. Roberts, and Crawford v. Washington

The opinion’s most explicit doctrinal correction targets language in State v. Strommen (2024 MT 87) and State v. Hogues (2024 MT 304), which described the first prong of Craig as requiring an “unavailable” witness and suggested an “implicit” prosecutorial good-faith effort to obtain the witness’s physical presence.

Johnson explains why this overlay is misplaced: Ohio v. Roberts (1980) and Crawford v. Washington (2004) concern the admission of testimonial hearsay when a witness cannot testify at trial due to physical or legal unavailability (e.g., cannot be located, privilege applies). By contrast, the problem in Johnson is not hearsay substitution for a missing witness; Maw is testifying live, under oath, subject to cross-examination, in a format the jury can observe. Thus, “unavailability” and “good faith” are not prerequisites under Craig for two-way video testimony.

The result is a clarified rule: Montana courts evaluating two-way video testimony should return to Craig’s two prongs—necessity tied to important public policy with case-specific findings, plus preserved reliability hallmarks—without importing hearsay-driven “unavailability” requirements.

Legal Reasoning

1) Framing the right at issue: face-to-face as a preference, not an absolute

The Court began from confrontation’s core purpose: ensuring reliability by “rigorous testing” in an adversary proceeding. It acknowledged the intuitive truth (from Coy) that it is harder to lie “to his face,” and reaffirmed that the confrontation clauses reflect a preference for face-to-face confrontation. But, consistent with Craig, that preference can yield to public policy and necessity in case-specific circumstances.

2) Prong One—Necessity to further an important public policy (case-specific findings)

Johnson’s central application of prong one is notable because it relies on a combination of factors rather than a single rationale:

  • Extraordinary caregiving obligations: Maw’s responsibility for young children’s daily supervision and his wife’s thrice-weekly dialysis transportation.
  • Advanced age: Maw was 86, increasing the burden and potential hardship of travel.
  • Distance and season: approximately 450 miles, with winter travel adding risk and burden.
  • Defendant-caused delay: Johnson’s failures to appear contributed to the trial delay that coincided with Maw’s relocation and responsibilities; the Court treated this as relevant context when balancing necessity and policy.
  • Witness willingness: Maw wanted to participate; remote testimony enabled participation rather than exclusion.

The Court characterized the public policy served as both (a) holding defendants accountable through trial and (b) protecting significant familial/caretaking interests of an elderly witness whose live participation would be materially impaired by compulsory travel. By describing these as “beyond mere judicial economy,” the Court distinguished the case from Mercier and Bailey, where cost and convenience were insufficient.

3) Prong Two—Reliability and confrontation “hallmarks” preserved

The Court emphasized functional confrontation:

  • Oath: Maw was sworn (initial technical difficulty did not undermine the oath once administered).
  • Cross-examination: defense counsel cross-examined Maw effectively; the record showed no communication barriers during testimony.
  • Demeanor observation: the jury could observe Maw in real time, satisfying the assessment-of-veracity function.

The Court also used trial dynamics to demonstrate the procedure’s adequacy: Johnson repeatedly referenced Maw’s testimony to support his own narrative, illustrating that the defense could meaningfully use and challenge the witness’s account notwithstanding the remote format.

4) The clarification holding: Craig governs two-way video without “unavailability” or “good faith” prerequisites

The opinion’s doctrinal centerpiece is its express clarification that, for live two-way video testimony, Craig does not require: (1) a witness to be “unavailable” for in-person testimony, or (2) a prosecutorial “good faith” showing to secure physical presence. Those requirements, the Court reasoned, arise in the different doctrinal setting of admitting prior testimonial statements when a witness cannot testify at all.

This clarification matters operationally: it prevents lower courts from treating “availability” as a veto on remote testimony even when strong, case-specific public policy considerations exist and the confrontation hallmarks are preserved.

Impact

1) Doctrinal impact in Montana: narrowing confusion from Strommen and Hogues

The decision provides a stabilizing clarification: Montana courts should not graft hearsay-based unavailability doctrine onto live two-way video testimony. Practically, this reduces the risk of reversible error stemming from trial courts applying an incorrect “unavailability/good faith” checklist rather than Craig’s necessity-and-reliability inquiry.

2) Expanded recognition of “important public policy” beyond pandemic exigencies

While pandemic-era cases frequently cited public health risks and travel restrictions, Johnson recognizes that significant caregiving responsibilities and advanced age—combined with distance and scheduling realities—can also constitute an “important public policy” basis for remote testimony, so long as findings are individualized and not mere convenience. This may broaden the categories of witnesses for whom remote testimony is constitutionally permissible (e.g., primary caregivers, medically burdened family circumstances), while still requiring a rigorous, fact-specific showing.

3) Litigation incentives and trial management

By noting Johnson’s role in delaying trial, the Court signals that a defendant’s dilatory conduct may weigh into the necessity calculus when remote testimony is sought later due to changes in a witness’s circumstances. Future defendants may face a steeper challenge arguing confrontation violations where their own nonappearance or delay contributed to the very hardship supporting remote testimony—though Johnson does not create a forfeiture rule; it treats delay as part of the totality.

4) Continued constraints: “judicial economy” alone remains insufficient

Johnson does not dilute the principle from Mercier, Bailey, and Martell that cost, efficiency, and convenience alone cannot justify remote testimony. The opinion should be read as requiring trial courts to articulate a policy interest with constitutional weight (public health, safety, protection of vulnerable witnesses, or—as here—extraordinary caregiving/familial obligations) and to tether that interest to detailed findings.

Complex Concepts Simplified

  • Confrontation Clause (“meet the witnesses … face to face”): The constitutional right of a criminal defendant to challenge adverse witnesses through live adversarial testing—especially cross-examination—and to have the jury observe the witness while testifying.
  • Two-way videoconferencing: A live video link where both the courtroom and the remote witness can see and hear each other in real time, allowing contemporaneous cross-examination and demeanor observation.
  • Craig “necessity” and “important public policy”: The State must show (and the court must find) a concrete, case-specific reason that in-person confrontation must yield to a sufficiently weighty policy interest—not a generalized preference for convenience.
  • “Hallmarks of confrontation” / reliability safeguards: Features that make testimony trustworthy in adversarial court: oath, cross-examination, and the factfinder’s ability to observe demeanor.
  • “Unavailability” (why it doesn’t control here): A hearsay concept used when a witness cannot testify at trial and the State seeks to introduce prior statements. In Johnson, the witness testified live; the dispute concerned physical face-to-face presence, not whether the witness could testify at all.

Conclusion

State v. Johnson reaffirms that Montana applies Maryland v. Craig to live two-way video testimony and clarifies that courts should not require a separate showing of witness “unavailability” or prosecutorial “good faith” efforts to secure physical attendance when the witness is testifying live by video. On the facts presented—an elderly witness with extraordinary caregiving responsibilities, significant winter travel burdens, and a trial delay attributable in part to the defendant—the Court held that important public policy and necessity justified the remote format, and that the oath, cross-examination, and demeanor observation preserved the constitutional core of confrontation.