(Cite as: 172 Ariz. 180, 836 P.2d 393)
The STATE of Arizona, Petitioner,
The Honorable William J. O'NEIL, a Judge for the Superior Court of the State
Arizona, County of Pinal, Respondent,
Robert JAMES, Real Party in Interest.
No. 2 CA-SA 91-0167.
Court of Appeals of Arizona,
Division 2, Department B.
Dec. 10, 1991.
Review Denied Sept. 22, 1992.
FERNANDEZ, Presiding Judge.
In this special action, the State of Arizona seeks relief from the
respondent trial court's order in the underlying criminal proceeding against
real party in interest Robert James (defendant) requiring the **394 *181
state to record all conversations with the victims and to provide defense
counsel with transcripts of those conversations. Because we conclude that
the trial court abused its discretion and exceeded its authority and because
we find that the state has no equally plain, speedy, or adequate remedy by
appeal, we accept jurisdiction and grant relief. Rules 1 and 3,
Ariz.R.P.Spec.Action, 17B A.R.S.
In May 1991 the defendant was indicted on three counts of aggravated
assault and two counts of criminal damage. Sometime in October, defendant's
counsel requested interviews of the three victims. The state contacted two
of the victims, advising them of the request and their right to refuse to be
interviewed under article II, § 2.1 of the Arizona Constitution, also known
as the Victims' Bill of Rights. The state subsequently advised defense
counsel that the witnesses had chosen to exercise their right to refuse an
interview. The third victim is apparently unavailable.
Defendant filed a motion requesting that his counsel be present at victim
interviews. During a hearing on the defendant's motion, the trial court
learned that the prosecutor intended to discuss the case with the victims in
an informal setting. The court concluded that when the victim refuses to
grant the defendant an interview, defense counsel cannot be present during
an interview by the prosecutor but can obtain a transcript of the recorded
interview. As a result, the court ordered the state to record all
statements of the victims to the prosecutor, formal or otherwise, and to
provide defense counsel with copies of the transcripts of those
This special action followed, with the state contending that the order
precludes the victims from exercising their constitutional rights and
constitutes an abuse of the court's discretion in discovery matters. The
defendant argues that the order is within the court's discretion and that it
protects his fundamental right to a fair trial. We stayed the proceedings
below pending our resolution of the issues raised.
 We conclude that the trial court abused its discretion on two grounds.
First, nothing in the criminal discovery rules authorizes the trial court to
require the state to create or produce evidence, specifically statements,
which it must then disclose. Although the state is required to provide the
defendant with the "relevant written or recorded statements" of witnesses,
Rule 15.1(a), Ariz.R.Crim.P., 17 A.R.S., that does not mean that the state
is required to make a recording any time its representatives speak with a
Second, to the extent that the real party in interest and the trial court
are relying on Rule 15.1(e), the result is an impermissible conflict with
the Victims' Bill of Rights. Subsection (e) authorizes the trial court to
order disclosure of "additional material or information not otherwise
covered by Rule 15.1" upon a showing of "substantial need in the preparation
of his case" and inability "without undue hardship to obtain the substantial
equivalent by other means...." Even assuming that the real party in
interest made the requisite showing for purposes of the rule, application of
the rule to require the recording and disclosure of the state's
conversations with the victims runs squarely afoul of the Victims' Bill of
Rights. The pertinent provisions of the constitution read as follows: