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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. State v. Murtagh (10/26/2007) sp-6177

State v. Murtagh (10/26/2007) sp-6177, 169 P3d 602

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OFFICE OF VICTIMS RIGHTS, ) Supreme Court Nos. S- 11988/12007
Appellants/Cross-Appellees, )
) Superior Court No.
v. ) 3AN-97-649 CI
Appellees/Cross-Appellants. ) No. 6177 October 26, 2007
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Sen K. Tan, Judge.

          Appearances:   Robert P.  Blasco,  Robertson,
          Monagle     &    Eastaugh,    Juneau,     for
          Appellants/Cross-Appellees.  Susan  Orlansky,
          Feldman  Orlansky & Sanders,  Anchorage,  for

          Before:    Fabe,  Chief  Justice,   Matthews,
          Eastaugh,  and Bryner, Justices.  [Carpeneti,
          Justice, not participating.]

          MATTHEWS, Justice.
          FABE,  Chief Justice, concurring in part and dissenting
in part.

          The question in this case is whether certain provisions
of  the  Alaska  Victims  Rights Act  are  unconstitutional.   We
conclude  that  they  are  because they interfere  with  criminal
defense investigations without adequate justification.
          This  case  was initiated by criminal defense attorneys
John   Murtagh,  James  McComas,  Cynthia  Strout,   and   Sidney
Billingslea  and defense investigator Harry Taylor  (collectively
referred  to in this opinion as Murtagh), on behalf of themselves
and  their  present and future clients.  They challenged  certain
provisions of the Victims Rights Act of 1991.1

          In  general,  the  provisions of the act  under  review
regulate criminal defense representatives conduct with respect to
pretrial  interviews of victims and witnesses.  The act  subjects
interviews  in cases in which the accusation is a sexual  offense
to  constraints  that  are more strict than those  applicable  to
other offenses.  In all cases, before defense representatives may
interview  a  victim, they must state their  identity  and  their
association with the defendant,2 tell the victim that the  victim
need  not talk with the representative,3 and tell the victim that
the  victim  may have a prosecuting attorney present  during  the
interview.4   Before a defense representative may  electronically
record  an interview with a victim or witness, the representative
must make the statements described above and also state that  the
interview  will be electronically recorded.5  Murtagh  challenged
these  requirements  except the requirement that  representatives
reveal their identity and association with the defendant.
          With  respect  to interviews in cases involving  sexual
offenses,  Murtagh challenged the additional constraints  imposed
by the act.  The relevant portions of the challenged provisions:
          Bar defense representatives from contacting a victim or
          a  witness who has informed the defendant or defendants
          counsel in writing that the victim or witness does  not
          wish to be contacted by defense representatives.6
          Require   defense  representatives  to  obtain  written
          authorization  from  a  victim  or  witness  before  an
          interview  may  be  recorded.  The  authorization  must
          state that the victim or witness is aware that there is
          no legal requirement that he or she talk to the defense
          representative  and  that  he  or  she   may   have   a
          prosecution   representative   present    during    the
          Require   defense  representatives  to  obtain  written
          authorization   from  a  victim   or   witness   before
          obtain[ing] a statement . . . not taken as a recording.
          The authorization must state that the victim or witness
          is  aware  that there is no legal requirement that  the
          victim or witness talk to the defense representative.8
          If  an  attorney  or a person subject to  an  attorneys
control   violates   the  statutory   constraints   relating   to
interviews  of victims and witnesses in sexual offense  cases,  a
court  upon learning of the violation must refer the incident  to
the  Disciplinary  Board  of  the Alaska  Bar  Association  as  a
grievance.9   Statements taken in violation of  the  statute  are
presumed inadmissible.10  The presumption may be overcome if  the
          defendant proves by clear and convincing evidence that (1) the
statement  is reliable; (2) similar evidence is unavailable  from
other  sources;  and  (3) failure to admit  the  statement  would
substantially  undermine  the  reliability  of  the  fact-finding
process and result in manifest injustice.11
          After  motion practice and discovery a trial  was  held
before Superior Court Judge Sen K. Tan.  At the conclusion of the
trial,   the  court  entered  extensive  findings  of  fact   and
conclusions of law.  Briefly, the court
          Upheld  the  requirement  that defense  representatives
          must  tell victims in all cases that they need not talk
          with  the defense representative and may choose to have
          a  prosecuting attorney or other person present  during
          an interview.  AS 12.61.120(c)(2) and (3).
          Upheld  the  bar on defense representatives  contacting
          either  victims  or witnesses in sexual  offense  cases
          where  the victims or witnesses have stated in  writing
          that   they   do   not  wish  to  speak  with   defense
          representatives.  AS 12.61.125(a)(1).
          Struck   down  the  requirement  pertaining  to  sexual
          offense  charges  that all victims and  witnesses  must
          consent  in  writing  before  being  interviewed.    AS
          Struck    down   the   requirement   that   a   defense
          representative must obtain the consent of a  victim  or
          witness   prior   to   recording  an   interview.    AS
          12.61.120(d) and AS 12.61.125(a)(2)(A).
As   to   those   provisions  that  the  superior   court   found
unconstitutional the courts rationale was, in each case, that the
provision  violated the equal protection and due process  clauses
of  the Alaska Constitution.  The court found that neither  party
was  the  prevailing party for purposes of an award of  attorneys
fees  and  determined  that  no  award  of  attorneys  fees   was
appropriate.   A  final judgment was entered in  accordance  with
these conclusions.
          The  State  has  appealed from those  portions  of  the
judgment that struck down the consent in writing requirements  of
AS  12.61.125(a)(2)(B)  and  the bar  on  undisclosed  electronic
recording contained in AS 12.61.120(d) and AS 12.61.125(a)(2)(A).
Murtagh has taken a cross-appeal from most, but not all,  of  the
portions  of  the  judgment that rejected  his  contentions.   He
argues   that   the   advice   requirements   contained   in   AS
12.61.120(c)(2) and (3) are unconstitutional except as applied to
victims of sexual offenses and domestic violence.  He also argues
that  the  no-contact provisions contained in AS  12.61.125(a)(1)
should  be struck down with respect to witnesses but not victims.
In  addition, Murtagh argues that the court erred in declining to
hold that he was the prevailing party in the litigation.
          We  review the constitutionality of a statute, like all
legal questions, de novo, and will adopt the rule of law which is
most persuasive in light of precedent, reason, and policy.12   We
apply  the clearly erroneous standard of review to a trial courts
findings  of fact.13  A finding of fact is clearly erroneous  and
          will be reversed only if review of the entire record leaves us
with a definite and firm conviction that a mistake has been made.14
     A.   Equal Protection
          One of the States primary contentions is that the equal
protection  clause of the Alaska Constitution does not  apply  to
this  case.15  The State argues that the State itself  is  not  a
person  within the meaning of this clause.  A statute that denies
persons  rights  available  to the State  may  therefore  not  be
invalidated  on equal protection grounds.          This  argument
is  supported  by our case law.  We stated in Weidner  v.  State,
Department   of   Transportation  &  Public  Facilities:    Equal
protection ensures that the State will not treat an individual or
group  of  individuals  differently from all  other  individuals.
Equal  protection does not, however, require the State  to  treat
all individuals the same as it treats itself.16  Given Weidner and
the  absence  of  any  persuasive contrary authority  from  other
jurisdictions,  we  agree  that the Victims  Rights  Act  is  not
vulnerable  to a constitutional attack under the equal protection
     B.   Due Process
          The  superior  court relied alternatively  on  the  due
process clause of the Alaska Constitution.17  The court concluded
that   [t]he  guarantee  of  due  process  protects  a   criminal
defendants  right to prepare and present a defense, and  observed
that [h]aving reasonable access to witnesses is an essential part
of  this right.  The superior court pointed out that opinions  of
this court and the Alaska Court of Appeals have
          condemned  on due process grounds actions  by
          the  state that interfere with the  right  to
          present witnesses to support a defense.12
          12    See Brandon v. Dept of Corrections, 865
          P.2d  87,  90  (Alaska 1993)  (holding  that,
          because  [t]he  right to call  witnesses  and
          present  evidence is fundamental  to  a  fair
          hearing  and  due  process,  even  in  prison
          disciplinary hearings the state may not  deny
          an  inmate  the  opportunity  to  present   a
          witness   except  for  compelling   reasons);
          Boggess v. State, 783 P.2d 1173, 1179 (Alaska
          App.  1989) (A defendants right to offer  the
          testimony  of witnesses is protected  by  the
          due   process   clause  of   the   fourteenth
          amendment.  .  . .  The prosecution  violates
          this  important  right  when  it  engages  in
          conduct   or   makes   comments   aimed    at
          discouraging    defense    witnesses     from
          testifying freely.).
The court also stated:
          A  person charged with a crime has a right to
          investigate the charges against him  or  her.
          This  right  is  protected by the  rights  to
          compulsory   process,   due   process,    and
          effective  assistance  of  counsel.    Alaska
          Const. art. I,  11 and art. I,  7.
               In   Alaska,  the  right  to  compulsory
          process   includes  the   right   to   obtain
          witnesses  and  documentary evidence  in  the
          defendants favor.  Braham v. State, 571  P.2d
          631 (Alaska 1977), cert. denied, 436 U.S. 910
          (1978).   This  includes the  right  to  call
          witnesses   at   trial  and   to   have   the
          prosecution   disclose   evidence   in    its
          possession  to the defendant.  The  right  to
          compulsory  process  includes  the  right  to
          investigate  witnesses who are  necessary  to
          the defense before trial.  However, the right
          to interview a witness does not mean there is
          the right to a successful interview.  Rather,
          the right involves the unfettered opportunity
          to interview witnesses.
               Similarly, the right to due process in a
          criminal proceeding may require the police to
          preserve  evidence,  but  also  provides  the
          right   to   challenge   the   evidence   the
          prosecution  intends to  rely  on  at  trial.
          Gundersen  v.  Municipality,  762  P.2d   104
          (Alaska  App.  1988),  affd,  792  P.2d   673
          (Alaska  1990).   Some federal  circuits  and
          other  states have concluded that due process
          affords  a  criminal defendant the  right  to
          interview  witnesses.  Kines v.  Butterworth,
          669  F.2d  6,  9  (1st Cir. 1981);  Upham  v.
          Bonebrake,  736 P.2d 1020, 1022  (Or.  1987).
          The  cases also hold that criminal defendants
          have  a  right  to access witnesses  and  the
          prosecution  may not, without  justification,
          interfere  with  that right.  Bonebrake,  736
          P.2d at 1022-23.  Some jurisdictions view the
          right  to  investigate to include a  face-to-
          face interview, unless there are questions of
          safety and well being of the witness.   State
          v. Boiardo, 412 A.2d 1084, 1086 (N.J. 1980).
               The   fundamental  right  to   effective
          assistance   of   counsel  requires   defense
          counsel  to  conduct  a prompt  and  thorough
          investigation,  or  to  make   a   reasonable
          decision  that a particular investigation  is
          not  necessary.3  Other courts have found the
          right  to investigate collateral to the right
          to counsel.
               Therefore   under  the  panoply   of   a
          criminal   defendants  fundamental  pre-trial
          rights,  those rights are only meaningful  if
          an accused has the right to investigate.  The
          right to investigate includes the opportunity
          to  interview  victims and witnesses  without
          interference by the prosecution.
          3     See ABA Standards for Criminal Justice:
          The    Prosecution   Function   and   Defense
          Function,  Standard 4-4.1(a) & commentary  at
          181-83  (3d  ed. 1993); State v.  Jones,  759
          P.2d  558, 569 (Alaska App. 1988); Arnold  v.
          State,  685  P.2d 1261, 1265-67 (Alaska  App.
          We   agree  with  the  superior  court,  based  on  the
authorities  the court cited and others referred to  below,  that
due  process  considered here as encompassing other more specific
fair  trial  rights such as the right to effective assistance  of
counsel  and  the  right  to compulsory  process   guarantees  to
persons  accused  of  crime the right to prepare  and  present  a
defense.   This right includes the right to reasonable access  to
witnesses without unjustified state interference.
     C.   Review of Due Process Fair Trial Claims
          The  State  misunderstands the concept of  due  process
with  respect to defense investigative rights.  It contends  that
our  substantive  due process jurisprudence applies  and  that  a
statute may be struck down as violating due process only when  it
has  no  reasonable  relationship to  a  legitimate  governmental
purpose.18  The State argues that since all of the provisions  of
the  act  have  some  relationship to  a  proper  objective,  the
superior    courts    decision   holding    certain    provisions
unconstitutional  must be reversed.  But the State  has  confused
substantive  due  process  claims with claims  that  due  process
guarantees  of a fair trial have been violated.  State practices,
including statutes, that interfere with fair trial rights do  not
pass  constitutional  muster merely because  they  are  minimally
          The  subject of criminal procedure, which  in  a  broad
sense includes pretrial discovery and investigative practices  as
well  as  the conduct of court proceedings, is one in which  this
court  has special responsibilities.  The rights of those accused
of  crime  are  largely  constitutionally  based.   These  rights
include, as Judge Tan noted, not only the due process guarantee,20
but also numerous specific rights that are necessary to ensure  a
fair trial.  These include the right not to be placed in jeopardy
twice  for  the  same  offense,21  the  privilege  against  self-
incrimination,22  the right to a speedy and public  trial,23  the
right to trial by jury,24 the right of the accused to be informed
of  the charges against him,25 the right to bail,26 the right  of
confrontation,27  the  right  to  have  compulsory  process   for
obtaining  witnesses,28 and the right to effective assistance  of
counsel.29  It is the obligation of the courts to interpret these
provisions so that they may be applied in particular cases and to
ensure that the rights they provide are not infringed by any form
          of state action.  Under Alaskas constitutional structure of
government,  the  judicial branch . . . has the  constitutionally
mandated  duty  to ensure compliance with the provisions  of  the
Alaska Constitution, including compliance by the legislature. 30
          In  addition,  the Alaska Constitution  vests  in  this
court  the power to make and promulgate rules governing  practice
and  procedure in civil and criminal cases.31  We have  exercised
this  authority to regulate pretrial discovery in criminal cases.
In  particular,  a rule promulgated by this court prohibits  both
prosecution  and defense representatives from advising  witnesses
to  refrain  from discussing a case with opposing representatives
or  otherwise imped[ing] opposing counsels investigation  of  the
case.32   In  addition,  this  court has  inherent  authority  to
regulate  the  conduct of attorneys, including the  authority  to
define ethical norms and provide for attorney discipline.33
          This discussion of the courts responsibility concerning
fair trial rights does not mean that the legislature is powerless
to  act  in  the  area.   But  our responsibility  requires  that
statutes  that  are  claimed to infringe  fair  trial  rights  be
closely  scrutinized.  Unlike in equal protection cases, we  have
not formulated a detailed method of analysis by which such claims
may  be judged.34  Nor do we do so comprehensively in this  case.
Here  it is sufficient to hold that statutes that trench on  fair
trial  rights  must,  at a minimum, have  as  their  purpose  the
protection  of  important interests.  We must ask  in  each  case
whether  the  interests  served by a statute  are  of  sufficient
weight to justify the limitations imposed on fair trial rights.35
In  striking this balance we will consider not only the  relative
strength  of  the  purpose underlying the statute  but  also  the
likelihood that the statute will achieve its purpose and  whether
the  purpose can be achieved in another way that does not  impede
fair trial rights.
          With  these observations in mind, we proceed to examine
the  provisions of the Victims Rights Act at issue in this  case.
The  provisions  can  be  discussed in three  categories.   These
categories encompass provisions that
     (1)  require  defense  representatives to  give  unsolicited
advice  to  victims and witnesses about their rights and  in  the
case  of  sexual  offenses  to  obtain  written  consent  to  any
     (2) enforce no-contact statements of witnesses;37 and
     (3) bar undisclosed electronic recording.38
     D.   Provisions  Requiring Defense Representatives  To  Give
          Unsolicited Advice and Obtain Written Consent
          1.   Suggesting  that  witnesses  not  cooperate   with
               defense representatives is improper.
          As  noted,  Criminal Rule 16(d)(1) prohibits  both  the
prosecution  and the defense from advising witnesses  to  refrain
from  discussing  the  case with opposing  counsel  and  likewise
prohibits otherwise imped[ing] opposing counsels investigation of
the  case.   These  prohibitions  have  both  an  ethical  and  a
constitutional foundation.
          The  American  Bar Association Standards  for  Criminal
Justice  provide  that [a] prosecutor should  not  discourage  or
obstruct communication between prospective witnesses and  defense
counsel.  A prosecutor should not advise any person or cause  any
person   to  be  advised  to  decline  to  give  to  the  defense
information  which  such person has the  right  to  give.39   The
commentary to this standard provides in part:
          Obstructing Communications Between  Witnesses
          and the Defense
               Prospective  witnesses  should  not   be
          treated as partisans. They should be regarded
          as  impartial  and as relating the  facts  as
          they  see  them.   Because witnesses  do  not
          belong to either party, it is improper for  a
          prosecutor, defense counsel, or anyone acting
          for  either side to suggest to a witness that
          the  witness  not submit to an  interview  by
          opposing counsel.
               It  is not only proper but it may be the
          duty of the prosecutor and defense counsel to
          interview any person who may be called  as  a
          witness   in  the  case  (except   that   the
          prosecutor  is  not entitled to  interview  a
          defendant represented by counsel who declines
          such  an  interview).  In the event a witness
          asks the prosecutor or defense counsel, or  a
          member  of their staffs, whether it is proper
          to submit to an interview by opposing counsel
          or  whether  it  is obligatory,  the  witness
          should  be  informed that there is  no  legal
          obligation to submit to an interview.  It  is
          proper, however, and may be the duty of  both
          counsel  in  most  cases  to  interview   all
          persons who may be witnesses and it is in the
          interest   of   justice  that  witnesses   be
          available for interview by counsel.
               It is proper for a prosecutor to tell  a
          witness  that  he  or  she  may  contact  the
          prosecutor   prior  to  talking  to   defense
          counsel.   The  prosecutor may also  properly
          request  an  opportunity  to  be  present  at
          defense counsels interview of a witness,  but
          may  not make his or her presence a condition
          of  holding the interview. It is also  proper
          to  caution a witness concerning the need  to
          exercise  care in subscribing to a  statement
          prepared by another person. In the event that
          a  written  statement is signed or  otherwise
          acknowledged  by  the witness  as  a  correct
          representation of facts known to the witness,
          a  copy  of the statement should be furnished
          to the witness upon request.[40]
          Numerous  cases hold that a prosecutor may not suggest,
directly  or  indirectly, that witnesses not speak  with  defense
representatives.41  A good example is State v. Hofstetter.42   In
Hofstetter   the  prosecutor  made  plea  agreements   with   co-
conspirators requiring their cooperation in a prosecution against
the  defendant.43   When  the  defendants  counsel  attempted  to
interview  the co-conspirators, the prosecutor took the  position
that  if  they consented to such interviews without a  prosecutor
present  they would breach the cooperation clause and their  plea
agreements would be invalidated.44  The defendant argued that this
interfered  with his ability to interview witnesses and  violated
his due process right to a fair trial.45  The Washington Court of
Appeals   held  that  the  prosecutions  attempt  to  limit   the
defendants   right   to   interview   the   co-conspirators   was
prosecutorial  misconduct.46  In so  concluding,  the  Hofstetter
court relied both on the ABA Standards and on an extensive survey
of  cases that prohibit prosecutors from interfering with defense
          One  of  the  leading cases relied on by Hofstetter  is
Gregory  v.  United States.48  In Gregory the prosecutor  advised
witnesses not to speak with defense representatives unless he was
present.49   The  court  concluded that this  advice  denied  the
defendant a fair trial because it was a suppression of the  means
by which the defense could obtain evidence:
          Witnesses, particularly eye witnesses,  to  a
          crime   are  the  property  of  neither   the
          prosecution nor the defense.  Both sides have
          an  equal  right, and should  have  an  equal
          opportunity,  to interview  them.   Here  the
          defendant was denied that opportunity  which,
          not  only the statute, but elemental fairness
          and due process required that he have.  It is
          true  that the prosecutor stated he  did  not
          instruct the witnesses not to talk to defense
          counsel.   He  did admit that he advised  the
          witnesses  not to talk to anyone  unless  he,
          the prosecutor, were present.
               We  accept the prosecutors statement  as
          to  his advice to the witnesses as true.  But
          we know of nothing in the law which gives the
          prosecutor  the right to interfere  with  the
          preparation  of  the defense  by  effectively
          denying   defense  counsel  access   to   the
          witnesses except in his presence.  Presumably
          the    prosecutor,   in   interviewing    the
          witnesses,  was unencumbered by the  presence
          of  defense counsel, and there seems to be no
          reason why defense counsel should not have an
          equal   opportunity  to  determine,   through
          interviews with the witnesses, what they know
          about  the  case and what they  will  testify
          to. . . .
               . . . .
               A   criminal  trial,  like   its   civil
          counterpart,  is  a quest  for  truth.   That
          quest  will more often be successful if  both
          sides  have an equal opportunity to interview
          the  persons  who  have the information  from
          which  the  truth  may  be  determined.   The
          current  tendency in the criminal law  is  in
          the  direction  of  discovery  of  the  facts
          before  trial and elimination of surprise  at
          trial.  A related development in the criminal
          law  is  the requirement that the prosecution
          not  frustrate the defense in the preparation
          of  its  case.  Information favorable to  the
          defense  must  be  made  available   to   the
          defense.    Reversals  of   convictions   for
          suppression  of such evidence, and  even  for
          mere   failure  to  disclose,   have   become
          commonplace.  It is not suggested  here  that
          there was any direct suppression of evidence.
          But there was unquestionably a suppression of
          the  means by which the defense could  obtain
          evidence.   The defense could not  know  what
          the  eye witnesses to the events in suit were
          to  testify to or how firm they were in their
          testimony unless defense counsel was provided
          a  fair  opportunity for interview.   In  our
          judgment the prosecutors advice to these  eye
          witnesses  frustrated that effort and  denied
          appellant a fair trial.[50]
          The   ABA  Commentary  recognizes  that  instances   of
prohibited interference with a defense investigation can be  both
direct  and  indirect.   Thus,  the Commentary  to  Standard  for
Criminal   Justice   11-4.1  recognizes  that  [o]bstruction   or
interference with opposing counsels investigation and preparation
of  the  case frequently takes the form of instructing  witnesses
not  to  talk with opposing counsel or their staffs, but  it  may
take the form of more subtle instructions.51
          2.   The   advice   and   written  consent   provisions
               impliedly suggest noncooperation.
          We  believe  that requiring defense representatives  to
give  unsolicited advice to victims and witnesses that  they  are
not  required  to  talk  to the representative  and  may  have  a
prosecutor  present if they do conveys an implied  suggestion  to
prospective  interviewees that it would be best if  no  interview
were given.  This none-too-subtle warning, in turn, substantially
interferes  with defense efforts to obtain evidence.   The  added
requirement in sexual offense prosecutions of written consent  to
an  interview serves to strengthen the message of noncooperation.
The testimony presented at trial and the courts findings tend  to
confirm these observations.
          At  trial numerous witnesses testified that the  advice
requirements resulted in a significant reduction in the number of
          people willing to give interviews.  One attorney estimated, as
the  court  summarized her testimony, that 90% of the people  she
contacts  in  civil and criminal cases talked with her  when  she
gave  no  warning, but only about 50% are willing to  talk  after
they  receive  the  statutorily  mandated  warnings.   A  defense
investigator  who  was formerly a police investigator  testified,
again  as  summarized  by the court, that the  statutes  severely
impede  his  investigations,  because  of  the  warning.    Other
witnesses   also  testified  to  reduced  success  in   obtaining
interviews.  Witnesses also stated that the mandated advice makes
people  uncomfortable and suspicious.  As a result, as the  court
observed,  even if the interview is not thwarted by the warnings,
the  quality  and  quantity of information obtained  through  the
interview  declines.  An expert witness presented  by  the  State
stated  that  the  act  has resulted in  a  declining  number  of
witnesses being willing to talk with defense investigators.   The
court found that police and prosecutors agreed that if the police
had  to  provide  the same warning, this would  have  a  negative
impact  on the prosecutions ability to investigate.           The
court  found  that  the  requirement of  written  consent  in  AS
12.61.125(a)(2)   posed   additional   problems.    The   writing
requirement  has  especially  adverse  consequences   in   remote
locations  because of logistical difficulties.  In a state  where
many  interviews must be conducted by telephone, the need  for  a
signed  written  consent to an interview  works  as  a  practical
roadblock.  We set out the courts findings on this point  in  the

          The  effect  of  the  unsolicited  advice  and  written
consent requirements as detailed above is disturbing.  We  accept
as given that it is in the interest of justice that the witnesses
be  available for interview by counsel53 and that justice is more
likely to be achieved if both sides have an equal opportunity  to
interview  the  persons who have the information from  which  the
truth  may be determined.54  Yet it appears that the requirements
are substantially interfering with these objectives.
          3.   Purposes of the provisions
          The  first section of the Victims Rights Act states its
               The  purpose of AS 12.61.100   12.61.150
          is  to  protect victims of and  witnesses  to
          crime  from risk of harassment, intimidation,
          and   unwarranted  invasion  of  privacy   by
          prohibiting  the  unnecessary  disclosure  of
          their addresses and telephone numbers.[55]
          In 1994 the Alaska Constitution was amended by adding a
victims rights clause.  Article I, section 24 provides:
               Crime  victims, as defined by law, shall
          have the following rights as provided by law:
          the right to be reasonably protected from the
          accused through the imposition of appropriate
          bail  or conditions of release by the  court;
               the right to confer with the prosecution; the
          right  to  be treated with dignity,  respect,
          and   fairness  during  all  phases  of   the
          criminal  and  juvenile justice process;  the
          right  to  timely  disposition  of  the  case
          following  the  arrest of  the  accused;  the
          right  to  obtain information  about  and  be
          allowed  to  be  present at all  criminal  or
          juvenile  proceedings where the  accused  has
          the  right  to be present; the  right  to  be
          allowed   to  be  heard,  upon  request,   at
          sentencing,  before  or after  conviction  or
          juvenile  adjudication, and at any proceeding
          where  the  accuseds release from custody  is
          considered; the right to restitution from the
          accused;  and the right to be informed,  upon
          request,  of the accuseds escape  or  release
          from  custody  before or after conviction  or
          juvenile adjudication.
According to the State, the 1996 amendments to the Victims Rights
Act  were meant to implement the new constitutional clause.   The
amendments   added   AS  12.61.120(d)   prohibiting   undisclosed
recording  of  victim and witness interviews   and  AS  12.61.125
adding more stringent constraints in connection with recorded and
unrecorded interviews of victims and witnesses in sexual  offense
cases.56  The legislative history of the 1996 amendments indicates
that  they  were meant to reduce the sense of continued violation
that victims may experience when they participate in pretrial and
trial processes.57
          With   respect  to  the  advice  and  written   consent
requirements  that are the subject of this part of  the  opinion,
the  State contends that the requirements are designed to  ensure
that  citizens are provided advice when they most need  it   when
they  are  being approached by the defense for an  interview   so
that  they  can meaningfully exercise their rights  and  exercise
some control over their life.  The State summarizes the statutory
purposes as follows:
          By   requiring  defense  representatives   to
          advise victims and witnesses they do not have
          to  be  interviewed and that  they  can  have
          another  person present, and to obtain  their
          permission  before tape recording  them,  the
          Legislature attempted to assure that  victims
          are   treated   with  dignity,  respect   and
          fairness, as required by Article I,  sec.  24
          of  the  Alaska Constitution, and to minimize
          instances of intimidation and harassment, and
          violations  of  the  privacy  guaranteed   by
          Article I, sec. 22 of the Constitution.
          4.   The  purposes of the provisions do not justify the
               impediments they impose.
          The  validity  of  the  oral  advice  requirements   of
          subsections .120(c)(2) and (3) as applied to sexual offense and
domestic  violence victims are not in question in this case.   As
to   victims  in  those  categories  only  the  written   consent
requirement  of  subsection  .125(a)(2)(B)  is  challenged.   The
superior  court  found,  as described  above,  that  the  written
consent  requirement posed serious practical problems, especially
in non-urban areas.  The court concluded that the written consent
requirement  added little if anything to the understanding  of  a
victims  rights  that  is obtained by compliance  with  the  oral
advice  requirements.58  As to witnesses in sexual offense cases,
the  court  observed that the written requirement  was  overbroad
since  it  applied  to  all  witnesses,  many  of  whom  are  not
emotionally vulnerable.59
          The  stated  objectives of the Victims Rights  Act  are
unquestionably  legitimate.  But the written advice  and  consent
provisions  go well beyond what is reasonably needed  to  achieve
them.   Victims of sexual offenses can be advised of their rights
in  a  neutral fashion by prosecution representatives or  victims
rights  advocates,  and  the advice may  be  repeated  orally  by
defense  representatives.   Requiring  the  additional  step   of
written consent in the context of a defense interview only serves
to  underline  a  message that cooperation with  the  defense  is
undesirable.   As  to witnesses, the written consent  requirement
conveys  the  same  message  of  noncooperation  with  even  less
          Turning  to  the advice requirements in general,  their
unbalanced nature is noteworthy.  Witnesses and victims have  the
same right to decline to be interviewed by police and prosecutors
as  by  defense representatives.  Likewise witnesses and  victims
have  the  right to give such interviews only in the presence  of
defense  representatives or other persons.   But  the  provisions
under  review  do not require that these rights be  communicated.
It  is  reasonable to assume that with respect to  some  victims,
only  defense representatives seem threatening and thus only one-
sided  advice needs to be given.  But it is also true  that  some
victims  and witnesses feel harassed by the demands made on  them
by  law  enforcement  personnel.60  The fact  that  only  defense
representatives must tell a victim or witness you  dont  have  to
talk  to  me strengthens the suggestion that noncooperation  with
the   defense  side  is  desirable.   The  one-sidedness  of  the
requirements  also suggests a design to give an unfair  advantage
to  the prosecution and undercuts the argument that they are only
meant  to convey to prospective interviewees accurate information
about their legal rights.61
          We do not suggest that victims and witnesses should not
be  advised of their legal rights.  But the form of advice given,
bearing  as  it  does  the endorsement  of  the  State,  must  be
accurate,   balanced,  and  designed  to  avoid   conveying   any
suggestion  that  it is desirable not to cooperate  with  defense
representatives.   We  think this could be  accomplished  if  law
enforcement  personnel or victims advocates  were  to  present  a
carefully thought-out statement to victims and witnesses  at  the
outset of proceedings.
          The  advice  and  written consent provisions  in  their
          present form interfere with defendants investigations.  Adhering
to  them necessarily carries a message that it is undesirable  to
cooperate  with  defense representatives.  Further,  the  written
consent requirement imposes needless practical obstacles  and  is
overbroad.   The  neutral  objective  of  informing  victims  and
witnesses  of their rights and achieving the benefits  that  flow
from  such information can be realized without these impediments.
For   these   reasons  we  conclude  that  the   provisions   are
inconsistent  with  the due process rights of  those  accused  of
     E.   The   Provision  Enforcing  No-Contact  Statements   of
          1.   The no-contact provision impedes investigations.
          Alaska   Statute   12.61.125(a)(1)  prohibits   defense
representatives  in sexual offense cases from contacting  victims
or  witnesses if the victim or witness has in writing  or  orally
informed defense representatives that he or she does not wish  to
be  contacted by the defense.  Murtagh challenges this  provision
as  it  relates  to writings signed by witnesses  but  not  those
signed by victims.62
          Murtagh   notes  that  the  no-contact  provision   has
fostered  a  practice  among prosecuting attorneys  whereby  they
provide  witnesses  with  no-contact forms  early  in  a  case.63
Murtagh  argues  that  it  is  good  investigative  practice   to
recontact  witnesses who initially refuse an interview  and  that
sometimes  upon  being  recontacted  a  witness  will   give   an
interview.    This  practice  is  foreclosed  by  the  provision.
Murtagh   argues   that  [n]othing  justifies  treating   defense
representatives  differently from prosecutors,  police  officers,
reporters,  and  nosy  neighbors, all of whom  have  a  right  to
contact  witnesses repeatedly to see if they have  changed  their
minds and have become willing to be interviewed.
          At  the trial, police investigators confirmed that they
frequently  recontact witnesses who initially refused  to  speak.
This  is  regarded  as  proper investigative  technique,  not  as
intimidation or harassment.  Defense investigators testified that
the  use  of no-contact forms impeded their investigations.   The
trial court credited this testimony.64
          Nonetheless,  the  trial court  upheld  the  no-contact
provision  on  the  ground that it is justified  as  a  means  of
enforcing  a  witnesss  right not to be interviewed.   The  State
argues that this conclusion is self-evidently correct:
          Is  it  substantial governmental interference
          with  the  defense access and opportunity  to
          interview a witness to require the defense to
          honor the witness invocation of the right not
          to  be  interviewed?  Asked another way:   Is
          there  anything  in  the  constitution   that
          creates  a right to contact people when  they
          say no?
          In  our  view the presentation of no-contact  forms  by
prosecution   representatives   to   prospective   witnesses   is
inherently  suggestive.   The  message  conveyed  is   that   the
          presenter believes that the witness would be well served by
refusing  to speak with defense representatives.  This suggestion
is  strengthened if, as seems likely, the presenter explains that
if  the  no-contact form is signed the law will prohibit  defense
representatives from contacting the witness.  That the no-contact
provision  has  the  effect  of denying  defense  representatives
access  to some witnesses who would otherwise speak to them  was,
as   noted   above,  established  at  trial.   Like  the   advice
provisions,  the  no-contact provision is  one-sided.   Witnesses
have  an  equal  right  to  refuse  to  speak  with  police   and
prosecutors,  but  nothing in the no-contact  form  recites  this
right,  nor would the no-contact provision enforce it if it  were
          The  use  of  no-contact forms is  a  significant  step
toward  making witnesses the property of the prosecution in  just
the  sense  condemned by the Circuit Court for  the  District  of
Columbia  in Gregory v. United States.65  Witnesses, particularly
eye  witnesses,  to  a  crime are the  property  of  neither  the
prosecution nor the defense.  Both sides have an equal right, and
should have an equal opportunity, to interview them.66
          2.   The no-contact provision is not justified.
          The underlying goals of the no-contact provision are to
enforce    witnesses   rights   not   to   speak   with   defense
representatives  and to prevent the harassment of  witnesses  and
protect  their privacy.  But the enforcement of rights rationale,
taken  alone, has a hollow ring because it is only the  right  to
refrain from speaking with defense representatives that is  being
enforced.  The anti-harassment and privacy invasion rationales do
not  appear to address widespread problems.  At trial  there  was
virtually no evidence describing witnesses who believed that they
had  been harassed by repeated contacts by defense investigators.
A  number  of  the  States expert witnesses who  testified  about
persons feeling harassed by defense contacts clarified that their
testimony  applied  solely to victims, not  witnesses.   Further,
there   is   nothing  inherently  harassing  or  invasive   about
recontacting a witness.  As the superior court noted:
               Police and prosecutors do not regard  it
          as harassing, intimidating, reflecting a lack
          of  dignity  and  respect, or an  unjustified
          invasion of privacy for police to recontact a
          .  . . witness, even one who has expressed  a
          desire   not   to  speak  with  the   police.
          Recontacting a reluctant witness can be  good
          police work.
          In  light of these considerations, it is our view  that
the  impediment to defense investigations posed by the no-contact
provision  is not justified.  If allowed to stand, the provision,
especially  as implemented, would cordon off many witnesses  from
defense interviews and thus threaten critical fair trial rights.
     F.   The Bar on Undisclosed Electronic Recording
          1.    Undisclosed electronic recording  is  lawful  and
          The   undisclosed  recording  by   one   party   to   a
conversation  is lawful in the state of Alaska.  Nationally,  the
ethics  of undisclosed recording by lawyers have been the subject
of  debate and conflicting rulings.  But there is now a consensus
that undisclosed recording is not unethical.67  The American  Bar
Association  issued an opinion in 1974 ruling that a  lawyer  may
not  ethically electronically record a conversation without prior
knowledge  of  all  parties  to the conversation.68   After  much
comment  and  criticism, this opinion was withdrawn,  and  a  new
opinion was issued in 2001.  The following excerpt from the  2001
opinion  explains not only the rationale of the 1974 opinion  but
also the reasons why it was withdrawn:
               Criticism of Opinion 337 has occurred in
          three   areas.   First,   the   belief   that
          nonconsensual  taping  of  conversations   is
          inherently   deceitful,  embraced   by   this
          Committee   in   1974,  is  not   universally
          accepted today. The overwhelming majority  of
          states  permit recording by consent  of  only
          one party to the conversation.  Surreptitious
          recording  of  conversations is a  widespread
          practice   by   law   enforcement,    private
          investigators and journalists, and the courts
          universally accept evidence acquired by  such
          techniques.   Devices for  the  recording  of
          telephone  conversations on  ones  own  phone
          readily  are available and widely  are  used.
          Thus, even though recording of a conversation
          without disclosure may to many people  offend
          a  sense  of  honor  and  fair  play,  it  is
          questionable whether anyone today justifiably
          relies  on an expectation that a conversation
          is  not  being  recorded by the other  party,
          absent a special relationship with or conduct
          by  that  party  inducing a belief  that  the
          conversation will not be recorded.
               Second, there are circumstances in which
          requiring  disclosure of the recording  of  a
          conversation may defeat a legitimate and even
          necessary  activity. For  that  reason,  even
          those  authorities that have agreed with  the
          basic  proposition of Opinion 337 have tended
          to  recognize numerous exceptions. The  State
          Bar  of  Arizona,  for example,  listed  four
          exceptions  to  the ethical  prohibition  for
          such    things   as   documenting    criminal
          utterances  (threats, obscene  calls,  etc.);
          documenting   conversations  with   potential
          witnesses  to protect against later  perjury;
          documenting conversations for self-protection
          of    the   lawyer;   and   recording    when
          specifically  authorized  by  statute,  court
          rule  or court order. Other ethics committees
               have excepted recordings by criminal defense
          lawyers, reasoning that the commonly accepted
          law  enforcement  exception  otherwise  would
          give   prosecutors   an   unfair   advantage.
          Exceptions  also  have  been  recognized  for
          testers    in   investigations   of   housing
          discrimination  and  trademark  infringement.
          And  the Ohio Supreme Court, although finding
          nonconsensual recordings by lawyers generally
          impermissible,  has noted  an  exception  for
          extraordinary circumstances as  well  as  for
          investigations  by prosecutors  and  criminal
          defense lawyers.
               A degree of uncertainty is common in the
          application  of  rules  of  ethics,  but   an
          ethical prohibition that is qualified  by  so
          many  varying  exceptions and  such  frequent
          disagreement as to the viability of the  rule
          as  a  basis for professional discipline,  is
          highly   troubling.  We  think   the   proper
          approach   to  the  question  of  legal   but
          nonconsensual recordings by lawyers is not  a
          general  prohibition with certain exceptions,
          but  a  prohibition of the conduct only where
          it is accompanied by other circumstances that
          make it unethical.[69]
          The  Ethics  Committee of the Alaska  Bar  Association,
which  had previously adopted the American Bar Associations  1974
opinion, followed the lead of the American Bar Association and in
2003 issued a new ethics opinion reflecting the current views  of
the American Bar Association.70
          The   superior  court  recognized  that  recording   an
interview  is  of  considerable  value  both  in  preparing   and
presenting a case.  The court also recognized that the  right  to
conduct  an undisclosed electronic recording is important because
some  witnesses  refuse  to be interviewed  if  an  interview  is
recorded.  We quote here the courts findings with respect to  the
interests  served by the electronic recording of  interviews  and
the  effect  of  requiring a witness to  consent  in  advance  to
               39.   Tape  recording interviews  is  an
          important  investigative tool.   A  recording
          captures  the  exact words and  tone  of  the
          speaker   and  [eliminates]  any   error   in
          interpretation of notes or of memory.
               40.   Taping  also enables  the  defense
          investigator  to  make a  record  to  protect
          himself  or herself against false accusations
          of    misconduct.    Again   there   are   no
          statistics, but false accusations  have  been
          made against defense investigators.
               41.   Defense  representatives  consider
               the ability to conduct secret taping  an
          important  investigative tool,  because  some
          victims and witnesses are willing to talk but
          not  willing to talk on tape, or not  willing
          to  talk  as  candidly.  Witnesses  from  the
          criminal milieu and people connected with the
          prosecution are especially unlikely to  agree
          to  talk on tape.  These are the people  most
          likely  either to deny what they said  or  to
          make   a  false  claim  against  the  defense
          investigator.   Another  category  of  people
          unlikely  to agree to talk on tape are  those
          whose statements are self-incriminatory.
               42.   Asking to tape an interview causes
          some people who had agreed to an interview to
          change  their minds and to refuse to proceed,
          even after the investigator says she will put
          the recorder away.
               43.    Former  Commissioner  of   Public
          Safety  Del Smith concurred with the  defense
          investigators that some people will not  talk
          on tape, and some suffer mike fright and find
          it harder to talk if a recorder is on.
               44.    Police  investigators  use  tapes
          secretly  and  openly.  Police  officers  use
          secret  tape  recordings  to  protect   their
          reputation and to protect themselves  against
          civil liability.
               45.   Civil  investigators also  conduct
          secret  tape  recordings.  Domestic  violence
          victims  have  made  secret  tapes  of  their
          batterers and have used such tapes in court.
               46.    In  the  expert  opinion  of  Joe
          Austin,  the prohibition on secret taping  by
          the  defense  has  a  severe  impact  on  the
          ability to conduct an investigation.[71]
          The  court in its conclusions of law made the following
further observations:
               Taping    interviews   is   a   valuable
          investigative tool.  Tapes preserve the exact
          words and tone of both questions and answers,
          eliminating  any  error  in  recollection  or
          interpretation.   The  right  to  engage   in
          undisclosed  tape recording is  an  important
          investigative tool, because some people  will
          agree to be interviewed but will not agree to
          a   tape  recorded  interview.   Asking   for
          permission  to  tape record results  in  some
          witnesses  refusing to continue the interview
          and    changes   the   character   of   other
               interviews.  Law enforcement officers use
          secret   tape   recordings,   as   do   civil
In  our  view the courts findings and conclusions concerning  the
value   of   electronically   recording   interviews,   including
undisclosed  recording,  are both well  considered  and  correct.
They are also consistent with our case law, as we discuss below.
          2.   No   substantial  countervailing   interests   are
               advanced by the bar on undisclosed recording.
          The State argues that the bar on undisclosed recording,
as  applied  to  victims,  is  justified  by  the  constitutional
guarantee  of the right to be treated with dignity, respect,  and
fairness during all phases of the criminal . . . justice process.72
As  to  victims and witnesses, the State argues that  undisclosed
recording  violates privacy rights recognized  under  article  I,
section  22 of the Alaska Constitution.73  The State also  argues
that  the  bar  is justified by the need to protect  victims  and
witnesses from harassment and intimidation.
          The  superior court in its conclusions of law discussed
these  interests  and  concluded  that  only  subjective  dignity
interests  are  compromised  by undisclosed  recording  and  only
sometimes does this occur:
               Once  a person consents to an interview,
          objectively, there is no measurable  increase
          in   invasion  of  privacy,  harassment,   or
          intimidation  in the fact that the  interview
          is secretly recorded.  Being secret, the tape
          recording   cannot  harass   or   intimidate.
          Allowing  secret tape recording  reduces  the
          risk of harassment, intimidation, and loss of
          privacy.   Because the investigator is  aware
          that  the  conversation is being  taped,  the
          investigator will be especially careful to be
          polite  and  not  harassing or  intimidating.
          Far   from  finding  secret  taping   by   an
          investigator  to be an invasion  of  privacy,
          harassment,  intimidation,  or   lacking   in
          respect and dignity, the Alaska Supreme Court
          has  held repeatedly that secret taping by  a
          known  person is proper and preferable to  no
          taping.9   Significantly,  the  American  Bar
          Association  and  Alaska Bar  Association  no
          longer   regard  secret  tape  recording   by
          lawyers as unethical or deceitful.  (Citation
               Subjectively,  some witnesses  suffer  a
          greater affront to their sense of dignity and
          respect if they learn they were secretly tape
          recorded.   It is difficult to quantify,  but
          most  people  view an accurate  record  of  a
          statement without knowledge that it is  being
          made, as something threatening and deceitful.
               Memories are imperfect, and recollection of
          what  was  said  precisely is impossible  for
          most  people.  Thus, not knowing that a tape-
          recording is made presents a potential future
          threat.   In addition, how a person  may  say
          something  if  there is a tape  recording  is
          different,  as a statement for posterity  may
          generally be more circumscribed.  The  States
          proffered   justifications  for   prohibiting
          secret tape recording all involve the way the
          tape might be used to embarrass a witness  at
          trial.   This may be true, but the tape  will
          be  used  at trial only if it is inconsistent
          with the witnesss trial testimony, and cross-
          examination  is  an  important  part  of  the
          adversarial process.
          9     See,  e.g., Stephan v. State, 711  P.2d
          1156, 1159-60, 1162 n.20 (Alaska 1985);  City
          &  Borough of Juneau v. Quinto, 684 P.2d 127,
          129 (Alaska 1984). . . .
          Concerning  privacy  interests, the  court  found  that
interviews with disclosed investigators were not private and thus
recording them did not compromise privacy interests:
               In  evaluating the privacy prong, if the
          statement is voluntary in the first place, as
          it  must be, given this courts decision as to
          informed  consent, objectively, there  is  no
          additional  privacy interest  in  a  recorded
          statement.   An unrecorded statement  may  be
          taken  down  in the interview as notes  or  a
          summary.  They may also be reconstructed  and
          added  to  from  the memory of the  listener.
          Just because a recorded statement may be more
          accurate  does  not  increase  the  level  of
          privacy  of  the  speaker.   Subjectively,  a
          speaker may feel that a secret tape recording
          further  affected the right to  privacy.   It
          may  be  viewed as a further invasion of  the
          sense  of trust, that the tape recording  may
          be used against the speaker.
          The   State   disagrees  with  the  courts  conclusions
expressed  in the excerpts quoted above, arguing that the  courts
observations amounted to over-extending the holdings  of  Stephan
v.  State  and City & Borough of Juneau v. Quinto, while ignoring
the  chilling effect that undisclosed tape recording may have  on
conversations as recognized by this court in State v. Glass74 and
Quinto.75  We believe that these arguments are unfounded for  the
reasons that follow.
          This court has recognized that electronic recording  of
interviews advances the search for truth.  In Mallott v. State we
advised Alaska law enforcement officers that it is incumbent upon
          them to tape record, where feasible, any questioning and
particularly  that  which occurs in a place of  detention.76   We
based  this admonition on the due process based duty to  preserve
          After  it  became apparent that the Mallott  admonition
was  not  being  followed, we held in Stephan v. State  that  the
recording  of stationhouse interviews should be mandatory.78   We
observed  in Stephan that recording is a reasonable and necessary
safeguard,  essential to the adequate protection of the  accuseds
right  to  counsel,  his  right against self  incrimination  and,
ultimately,  his  right to a fair trial.79  We also  decried  the
frequent  swearing match[es] between interrogating  officers  and
defendants  as  to  what  actually  had  taken  place  during  an
interrogation.80   We  concluded that not  only  does  electronic
recording  provide a defendant an objective means to  corroborate
[the  defendants] testimony concerning the circumstances  of  the
confession, it also protects the publics interest in  honest  and
effective  law enforcement and protects the interests  of  police
officers wrongfully accused of improper tactics.81
          A  recording,  in many cases,  will  aid  law
          enforcement   efforts,  by   confirming   the
          content   and   the   voluntariness   of    a
          confession,  when  a  defendant  changes  his
          testimony   or   claims  falsely   that   his
          constitutional rights were violated.  In  any
          case,   a  recording  will  help  trial   and
          appellate courts to ascertain the truth.[82]
The  upshot of these observations was that recording was  thought
to  be  so  essential that interviews that were not recorded,  in
violation  of the Stephan rule, would be subject to exclusion  at
          In   Stephan  we  recognized  that  one  problem   with
electronic  recording is that, as the State  claimed,  recordings
tend to have a chilling effect on a suspects willingness to talk.84
We  suggested  as  a  response  to this  point  that  undisclosed
recording could be conducted:  [W]hen the . . . suspect knows  or
has  reason to know he is speaking to a police officer, there  is
no  constitutional requirement that the suspect be informed  that
the interview is being recorded.85
          Given the strong endorsement of electronic recording of
interviews  in Stephan, the States contention that  the  superior
court  over-extended Stephans endorsement of electronic recording
of  interviews is incorrect.  The same may be said regarding  the
States  argument  that the superior court misinterpreted  City  &
Borough of Juneau v. Quinto86 and State v. Glass.87
          In  Quinto this court held that an individuals right to
privacy  under  the Alaska Constitution was not violated  when  a
recording  of the individuals conversation with a police  officer
was  admitted where the individual knew that he was talking to  a
police  officer but did not know that the officer  was  recording
the  conversation.88  In Quinto we reversed the decision  of  the
court  of appeals which had been, in turn, based on a reading  of
our decision in Glass.89
          We  explained  the  Glass  holding  and  the  court  of
appealss reliance on it as follows:
          In  that case we held that it was a violation
          of  a  defendants  right  to  privacy,  under
          article   I,   section  22  of   the   Alaska
          Constitution,    for    the     police     to
          surreptitiously   monitor   the    defendants
          conversation   with   an  undercover   police
          informant,  without a warrant or other  court
          order,  by means of a radio transmitter  worn
          by the informant.  Interpreting our decision,
          the  court  of appeals conclude[d]  that  the
          warrant requirement of Glass must be read  to
          include    situations    involving    routine
          nonconsensual    recording   of    pre-arrest
          conversations between citizens and  uniformed
We  held that the court of appeals had read Glass too broadly and
that a person in Quintos position, knowing that he is speaking to
a   police  officer,  has  no  reasonable  expectation  that  the
conversation will be private:
               The  test  for  determining  whether   a
          persons  right  to privacy has  been  invaded
          under article I, section 22 is two-fold:  (1)
          did  the person harbor an actual (subjective)
          expectation of privacy, and, if  so,  (2)  is
          that expectation one that society is prepared
          to  recognize as reasonable?  For the reasons
          stated earlier in this opinion we assume, for
          purposes   of   our  decision,  that   Quinto
          harbored  an  actual (subjective) expectation
          of  privacy.   Thus, we must  determine  only
          whether  Quintos expectation  of  privacy  in
          these  circumstances is one which society  is
          willing  to  recognize as reasonable.   Glass
          requires nothing more.
                 Article  I,  section  22  fosters  and
          protects  those  values  and  characteristics
          typical  of and necessary for a free society.
          Some of these are the sharing of thoughts and
          ideas,  personal  trust between  individuals,
          free expression, and individuality.  While it
          is    certainly   true   that   surreptitious
          recording  of conversations between  citizens
          can  have a chilling effect on such forms  of
          freedom,  this effect is rendered de  minimis
          when  one  is aware, or reasonably should  be
          aware, that he or she is speaking to a police
          officer  who  is in the process of  executing
          either   a   lawful  arrest   or   a   lawful
          investigative  stop.   In  such  case,   ones
          candor  and  willingness  to  share  personal
          confidences  are  unlikely  to  be  any  more
          effectively chilled than they already are  by
          the added possibility that what is being said
          may be electronically recorded.[91]
          Based  on  the foregoing, we conclude that  the  States
criticism of the superior courts interpretation of our  case  law
is   unwarranted.   We  agree  with  the  superior   court   that
undisclosed  recording cannot be characterized as  harassment  or
intimidation  of  witnesses, nor does it  invade  their  privacy.
With respect to the latter, what we said in Quinto concerning the
absence  of  a  reasonable expectation of  privacy  of  a  person
speaking  with  a  known  police officer  investigating  a  crime
applies   equally  to  a  person  speaking  to  a  known  defense
representative  conducting an investigation.  A  persons  privacy
interests  are  no  more  violated when a defense  representative
records  such  a  conversation  without  disclosing  that  he  is
recording  it than in the case of an undisclosed recording  by  a
police officer.
          Quinto   also  answers  the  chilling  effect  argument
offered by the State to the effect that the interests advanced by
Glass   avoidance  of  the  chilling  effect  that  surreptitious
recording  of conversations between citizens can have on  freedom
of expression  applies to interviews between citizens and defense
investigators.  Just as the possibility of secret tape  recording
in a police-citizen interaction is unlikely to have a significant
effect  on  what a citizen says, the same is true  in  a  defense
investigatorcitizen  interaction.  The important  point  is  that
Glass was designed to promote free discourse between citizens  in
their  everyday conversations.  The free-speech values that Glass
protects  do  not  arise  in the guarded context  of  a  criminal
investigation where citizens are aware that they are speaking  to
an investigator.
          We  also  agree with the superior court that  the  only
interest  likely  to  be  advanced  by  the  bar  on  undisclosed
recording  is the avoidance of the sense of affront,  insult,  or
embarrassment  that  might  be  experienced  by  a  witness  upon
learning  that an interview was recorded.  Although such feelings
are  understandable,  they  are  also  likely  to  be  temporary.
Further, as suggested by the superior court, the feelings  become
strongest where the recording has the most value  where there are
inconsistencies between the witnesss interview and the  testimony
given  by the witness at trial.  A recorded interview is of great
value  in  demonstrating such inconsistencies and in facilitating
cross-examination designed to probe them.92  A witnesss sense  of
affront  or  embarrassment is not a detriment of such  importance
that  avoiding it justifies the suppression of evidence that  can
be preserved by undisclosed electronic recording.93
          We  acknowledge that feelings of affront may be greater
upon  discovering that one has been tape recorded  by  a  defense
investigator in plain clothes than when discovering that one  has
been tape recorded by a uniformed police officer.  The revelation
that one has been secretly recorded in a more casual setting  may
sting,  and  may  compound  for  a  victim  her  already-existing
          feelings of victimization.  We could wish that investigations and
trials  were painless affairs, but they are not; and the no-doubt
genuine  feelings  of  affront faced  by  victims  and  witnesses
deserve recognition, however they may be caused.  But in the end,
such  feelings must be balanced against the interests of  all  in
having a fair trial.
          We   emphasize   that   AS   12.61.120(c)(1)   and   AS
12.61.120(d)(1) insofar as it incorporates (c)(1), which we today
uphold,  require that defense representatives identify themselves
and  their specific association with the defendant when they seek
to  interview crime victims and witnesses, putting them on notice
of  the representatives purpose and role in the same way a police
officers uniform would tend to put them on notice.94  If  defense
representatives  fail  to make these disclosures,  or  engage  in
deceptive or misleading tactics, they are subject to sanctions by
the  trial court.  Relatedly, the fact that our decision  permits
defense  representatives to record interviews without  disclosing
that  they  are  doing so does not mean that  trial  courts  lack
authority  to  take appropriate measures to protect  the  privacy
rights  of  victims or witnesses when case-specific circumstances
indicate  a  need for protective action.  We stress  that  courts
should be alert to the possibility of such circumstances and take
action when they exist.
          In  summary, we conclude that undisclosed recording  is
as  valuable for defense representatives as it is for the  police
and  that the objections to it are of little weight when compared
to  its  benefits.  It would be paradoxical to uphold a law  that
bars  defense  representatives from pursuing the practice,  while
leaving the police and virtually everyone else in the state  free
to  electronically record their conversations without disclosure.
We therefore agree with the conclusion of the superior court that
the  requirements  of the act precluding defense  representatives
from  undisclosed  electronic recording unduly interfere  with  a
defendants right to prepare and present a defense.
          There  are  potential tensions between the requirements
of  due  process and the constitutionally based rights of victims
and  witnesses.   No  single formula is available  for  resolving
these  tensions.   But one method that should be  helpful  is  to
require  that  statutes  asserting  the  rights  of  victims  and
witnesses  conflict to the least degree reasonably possible  with
the  rights  of  defendants.  Another method is to  require  that
where  possible  such statutes apply to both the prosecution  and
the  defense  so that they do not unduly advantage  either  side.
The provisions under review in this case fall short under one  or
both of these methods.
          For  the  reasons stated we believe that the provisions
under review unjustifiably interfere with defense investigations.
Because  they present a distinct risk of suppressing  sources  of
evidence  that  otherwise would be available to defendants,  they
are  inconsistent with procedural due process.  With  respect  to
the  specific sections of the Victims Rights Act in question,  we
rule as follows:
          AS  12.61.120(c)(2) and (3) (unsolicited  advice)   The
          judgment of the superior court holding that these provisions are
constitutional  remains undisturbed with respect  to  victims  of
sexual offenses and domestic violence crimes.  Except as to  such
victims,  the  judgment  of the superior  court  upholding  these
provisions is reversed.
          AS  12.61.125(a)(1) (no contact)  The judgment  of  the
superior court upholding this provision remains undisturbed  with
respect to victims.  The judgment of the superior court upholding
this provision as to witnesses is reversed.
          AS  12.61.125(a)(2)(B) (written consent)  The  judgment
of   the   superior   court  holding  that  this   provision   is
unconstitutional is affirmed.
          AS  12.61.120(d) and AS 12.61.125(a)(2)(A) (undisclosed
electronic recording)  The judgment of the superior court holding
that these provisions are unconstitutional is affirmed.
          Our  conclusion on the merits means that Murtagh is the
prevailing party for purposes of an award of attorneys  fees  and
costs.   On  remand the superior court should make an appropriate
award for these items.
          AFFIRMED in part, REVERSED in part, and REMANDED for  a
determination of attorneys fees and costs.
          FABE,  Chief Justice, concurring in part and dissenting
in part.
          I concur with the courts opinion in all respects except
one:   its  conclusion that AS 12.61.120(d)s ban on surreptitious
recording  is  unconstitutional.  On this issue,  I  believe  the
court  strikes the wrong balance between a defendants due process
right  to  prepare for trial and a witnesss or victims  right  to
          The  court considers the correct question:  whether the
interests served by a statute are of sufficient weight to justify
the  limitations imposed on [the defendants] fair trial  rights.1
But  the court proceeds to conclude that there are no substantial
countervailing interests . . . advanced by the bar on undisclosed
recording.2   I  respectfully disagree.  The Alaska Constitution3
establishes  a  right  to  privacy  that  witnesses  and  victims
indeed,   all   citizens   enjoy.   Surreptitious  recording   of
interviews  with witnesses and victims violates that  right.   In
fact, our holding in Glass expressed not only a strong policy  in
favor  of  privacy,  but  also  one  particularly  skeptical   of
surreptitious  recording absent a warrant:  We believe  that  one
who  engages  in a private conversation is similarly entitled  to
assume  that  his words will not be broadcast or recorded  absent
his consent or a warrant.4
          Surreptitious   recording   without   a   warrant   has
nonetheless  been permitted in limited circumstances,  namely  in
the  scenario  outlined in Quinto and its  progeny.   The  courts
heavy  reliance on these cases to justify a supposed  inclination
toward  surreptitious recording5 mistakes the exception  for  the
rule.   According  to  the  Quinto  line  of  cases,  warrantless
surreptitious  recording  is  allowed  by  (1)  law   enforcement
officials; (2) conducting a lawful stop or arrest; (3)  in  their
conversations with criminal suspects; (4) when the suspect  knows
or  reasonably  should know he is talking to a  police  officer.6
Our  holding in Stephan requiring police officers to record their
custodial interrogations of defendants does not depart from these
          The  logic behind the Quinto exception is that criminal
suspects lack a reasonable expectation of privacy when they  know
or  should know  that they are being stopped by a police  officer
in  an  official  capacity.   In a society  widely  cognizant  of
Miranda  rights, people are quite aware that what they say  to  a
police  officer after a lawful stop or arrest can be held against
them  later.   Because  of this wide awareness,  a  post-stop  or
arrest  expectation of privacy is unreasonable, and surreptitious
recording is therefore permitted.  As we noted in Quinto,
          [i]n  such  case, ones candor and willingness
          to share personal confidences are unlikely to
          be  any  more effectively chilled  than  they
          already  are  by  the added possibility  that
          what  is  being  said may  be  electronically
But  conversations  with  defense  attorneys,  investigators,  or
prosecutors do not fit this mold, and I disagree with  the  court
that  the  absence of a reasonable expectation of  privacy  of  a
person speaking with a known police officer investigating a crime
applies   equally  to  a  person  speaking  to  a  known  defense
representative conducting an investigation.9
          As the courts opinion recognizes, Glass was designed to
promote  free  discourse  between citizens.  .  .  .10   But  the
discourse described in Quinto was between a police officer and  a
citizen.   Indeed, the Quinto court emphasized that the  presence
of  the  police  was the crucial element that made  surreptitious
recording permissible:  The key element, in these cases,  is  the
defendants awareness that he is in the presence of the  police.11
The  Public  Defender Agency, appearing as amicus curiae,  argues
that  it is the fact of recording, not police presence, which  is
critical to our decision.  For the reasons stated in the text  of
this opinion, we disagree.12  And here, the interviewees are  not
suspects  who have been stopped by the police  they are witnesses
and  victims.  As Quinto recognized, suspects know or should know
that what they say in the presence of police during a lawful stop
or  arrest can be held against them later.  Because the stop  was
lawful  and because Quinto knew, or reasonably should have known,
that  he  was speaking to a police officer, we concluded that  it
should  have been clear to Quinto that the officer was performing
his   official  duties  throughout  the  period  covered  by  the
recording.   Thus, we held that Quintos expectation  of  privacy,
i.e.  his  assumed  expectation that his conversation  with  [the
police  officer]  would not be recorded, is  not  an  expectation
which society is willing to accept as reasonable.13
          Such  awareness cannot be attributed to  witnesses  and
victims  when they talk to defense investigators, and it  is  not
safe to assume such a conversation will naturally be guarded,  as
the  court believes.14  A private conversation between a  citizen
and  a  defense attorney or defense investigator, whether private
or  public,15 does not fit within the Quinto exception.  Nor, for
that  matter, do conversations between a citizen and a prosecutor
or paralegal.
          In  summary, permitting surreptitious recording is  the
exception  rather  than the rule, and Quinto involved  a  limited
circumstance:  a law enforcement official interrogating a suspect
who knew or reasonably should have known that he was talking to a
police officer in the course of a lawful stop.  Although I  agree
with  the  court that the infringement on a defendants  right  to
prepare for trial must outweigh countervailing interests for  the
ban to be constitutional, in performing this balancing, the court
has  incorrectly dismissed the crucial privacy right advanced  by
the  ban as unsubstantial, characterizing it as nothing more than
the  protection from temporary feelings of affront that a witness
or  victim  may  experience.16  The protection of  witnesses  and
victims   privacy  is  not  a  trifling  endeavor    the   Alaska
Constitution provides that the right of the people to privacy  is
recognized  and shall not be infringed.17  Because protection  of
privacy  rights  justifies  and  outweighs  the  statutory   bans
limitation  on the defendants due process right, I  believe  that
the  bar on surreptitious recording is constitutional and  should
be upheld.
     1    The Victims Rights Act provides in relevant part:

          AS 12.61.120:
               (c) If a defendant or a person acting on
          behalf of a defendant contacts the victim  of
          an  offense  with which the defendant  is  or
          could  be  charged, the person shall  clearly
          inform the victim
               (1) of the persons identity and specific
          association with the defendant;
               (2)  that  the victim does not  have  to
          talk  to the person unless the victim wishes;
               (3)   that   the  victim  may   have   a
          prosecuting attorney or other person  present
          during an interview.
               (d) If a defendant or a person acting on
          behalf  of  a  defendant  wishes  to  make  a
          recording of statements of the victim  of  an
          offense with which the defendant is or  could
          be  charged  in this or another jurisdiction,
          or  of  a  witness, the person shall,  before
          recording begins, obtain the consent  of  the
          victim or witness to record the statement  by
          clearly  informing the victim or witness  (1)
          of  the  information set out in (c)  of  this
          section,  (2)  that  the  statement  will  be
          recorded  if the victim or witness  consents,
          and (3) that the victim or witness may obtain
          a  transcript  or other copy of the  recorded
          statement   upon  request.   When   recording
          begins, the person making the recording shall
          indicate in the recording that the victim  or
          witness has been informed as required by this
          subsection,  and the victim or witness  shall
          state  in the recording that consent  of  the
          victim  or witness to the recording has  been
AS 12.61.125:

               (a)  The  defendant accused of a  sexual
          offense,  the  defendants  counsel,   or   an
          investigator or other person acting on behalf
          of the defendant, may not
               (1)    notwithstanding   AS   12.61.120,
          contact  the  victim  of  the  offense  or  a
          witness  to  the  offense if  the  victim  or
          witness,  or  the parent or guardian  of  the
          victim or witness if the victim or witness is
          a  minor, has informed the defendant  or  the
          defendants  counsel in writing or  in  person
          that  the victim or witness does not wish  to
          be  contacted  by the defense;  a  victim  or
          witness who has not informed the defendant or
          the  defendants  counsel  in  writing  or  in
          person  that the victim does not wish  to  be
          contacted  by  the  defense  is  entitled  to
          rights as provided in  AS 12.61.120;
               (2)  obtain a statement from the  victim
          of  the  offense or a witness to the offense,
               (A)  if  the  statement is  taken  as  a
          recording,   the  recording   is   taken   in
          compliance  with  AS 12.61.120,  and  written
          authorization  is  first  obtained  from  the
          victim  or  witness, or from  the  parent  or
          guardian  of  the victim or  witness  if  the
          victim  or  witness is a minor;  the  written
          authorization must state that the  victim  or
          witness  is  aware  that there  is  no  legal
          requirement  that the victim or witness  talk
          to the defense; or
               (B)  if the statement is not taken as  a
          recording,  written  authorization  is  first
          obtained from the victim or witness, or  from
          the  parent  or  guardian of  the  victim  or
          witness if the victim or witness is a  minor;
          the written authorization must state that the
          victim or witness is aware that there  is  no
          legal  requirement that the victim or witness
          talk  to  the  defense; a victim  or  witness
          making  a  statement under this  subparagraph
          remains entitled to rights as provided in  AS
     2    AS 12.61.120(c)(1).

     3    AS 12.61.120(c)(2).

     4    AS 12.61.120(c)(3).

     5    AS 12.61.120(d).

     6    AS 12.61.125(a)(1).

     7    AS 12.61.125(a)(2)(A).

     8    AS 12.61.125(a)(2)(B).

     9    AS 12.61.125(c).

     10    AS 12.61.127.

     11    Id.

     12    Alaska Inter-Tribal Council v. State, 110 P.3d 947, 955-
56 (Alaska 2005).

     13    Id.

     14    Id.

     15     The equal protection clause, contained in article  I,
section   1   of   the  Alaska  Constitution,   provides:    This
constitution  is  dedicated to the principles  .  .  .  that  all
persons  are  equal and entitled to equal rights,  opportunities,
and   protection  under  the  law;  and  that  all  persons  have
corresponding obligations to the people and to the State.

     16    860 P.2d 1205, 1211 (Alaska 1993).  Murtagh also argues
that  equal  protection requires that criminal defense  attorneys
and  investigators  be  treated  the  same  as  their  civil  law
counterparts.   But  this argument lacks merit  because  criminal
defense   attorneys  and  investigators  are  only  disadvantaged
relative to state prosecutors and police.  When they are  engaged
in civil litigation they have all the rights of civil litigators.
Further,  civil and criminal litigants are not similarly situated
groups  for  equal protection purposes given the many differences
between  civil  and  criminal  litigation.   The  two  types   of
litigation  have  different aims and possible outcomes,  and  the
rights  and  obligations of litigants also  differ.   See  Alaska
Inter-Tribal Council, 110 P.3d at 967:  If it is clear  that  two
classes  are  not similarly situated, this conclusion necessarily
implies that the different legal treatment of the two classes  is
justified by the differences between the two classes.

     17     Article  I,  section  7  of the  Alaska  Constitution
provides  in part:  No person shall be deprived of life, liberty,
or property, without due process of law.

     18     Chiropractors for Justice v. State, 895 P.2d 962, 966
(Alaska 1995).

     19     Cf.,  e.g.,  Brooks v. Tennessee, 406 U.S.  605,  611
(1972)  (holding  that Tennessee statute requiring  defendant  to
testify  before any other testimony for the defense if he  wished
to  testify  at  all  violates right of  due  process  under  the
Fourteenth Amendment by limiting counsels ability to evaluate the
need  for  such  testimony,  even  though  statute  is  based  on
legitimate interest in preventing testimonial influence).

     20    Alaska Const. art. I,  7.

     21    Alaska Const. art. I,  9.

     22    Alaska Const. art. I,  9.

     23    Alaska Const. art. I,  11.

     24    Id.

     25    Id.

     26    Id.

     27    Id.

     28    Id.

     29    Id.

     30     State,  Dept  of  Health &  Soc.  Servs.  v.  Planned
Parenthood  of  Alaska,  Inc., 28 P.3d  904,  913  (Alaska  2001)
(alteration  in  original) (quoting Malone v. Meekins,  650  P.2d
351, 356 (Alaska 1982)).

     31    Alaska Const. art IV,  15.

     32    Alaska R. Crim. P. 16(d).

     33    In re Simpson, 645 P.2d 1223, 1226 (Alaska 1982); In re
MacKay,  416 P.2d 823, 836-37 (Alaska 1965) (holding  that  court
has  inherent  power  over  the  suspension  and  disbarment   of
attorneys  that cannot be defeated by the legislative  branch  of

     34     An  explanation  of  our equal protection  method  of
analysis  may be found in Gonzales v. Safeway Stores,  Inc.,  882
P.2d 389, 396 & n.7 (Alaska 1994).

     35     Cf. Rock v. Arkansas, 483 U.S. 44, 55-56 (1987)   (Of
course,  the  right to present relevant testimony is not  without
limitation.   The  right  may,  in  appropriate  cases,  bow   to
accommodate  other  legitimate interests in  the  criminal  trial
process.   But restrictions of a defendants right to testify  may
not  be  arbitrary or disproportionate to the purposes  they  are
designed  to  serve.  In applying its evidentiary rules  a  State
must evaluate whether the interests served by a rule justify  the
limitation  imposed  on  the defendants constitutional  right  to
testify.) (citation and footnote omitted).

     36    AS 12.61.120(c)(2), (3); AS 12.61.125(a)(2)(B).

     37    AS 12.61.125(a)(1).

     38    AS 12.61.120(d); AS 12.61.125(a)(2)(A).

     39     Standards  for Criminal Justice 3-3.1(d)  (1993).   A
similar  standard  also applies to defense counsel.   Id.  at  4-

     40    Id. at 3-3.1 (footnote omitted).  Similar commentary is
set out with respect to the defense function.  Id. at 4-4.3.

     41     The same holds true for defense counsel, as witnesses
have  a  legal right to decline to be interviewed by  prosecutors
and   police   as  well  as  by  defense  counsel.   See,   e.g.,
Commonwealth  v. St. Pierre, 387 N.E.2d 1135, 1140  (Mass.  1979)
(holding  that witnesses in criminal cases may decline interviews
from either side); State v. Singleton, 853 S.W.2d 490, 493 (Tenn.
1993) (holding that witnesses have discretion whether to talk  to
either  side); 23A C.J.S. Criminal Law  1627 (2007)  ([W]itnesses
may decline of their own will to talk to either side . . . .).

     42    878 P.2d 474 (Wash. App. 1994).

     43    Id. at 475-76.

     44    Id. at 476.

     45    Id.

     46    Id. at 481-82.

     47    Id. at 478-81.

     48    369 F.2d 185 (D.C. Cir. 1966).

     49    Id. at 187.

     50    Id. at 188-89 (citations and footnotes omitted).

     51     Standards  for  Criminal Justice 11-4.1  cmt.  (1980)
(footnote omitted).

     52    The court found:

               49.   The  requirement to obtain written
          consent  to an interview in a sexual  offense
          case, where the interview is not taped, makes
          it more difficult to obtain interviews.
               50.    The  requirement  makes  it  very
          difficult to do phone interviews, because  of
          the   logistical  difficulty  of  getting   a
          written  consent before proceeding  with  the
          interview.  Witnesses sometimes call  defense
          investigators.   In  order  to  continue  the
          interview and to comply with the statute, the
          attorney  needs  to  stop the  interview  and
          direct the witness to the nearest Kinkos  (or
          other  such  place) to receive and  return  a
          fax,  or  else make arrangements to meet  the
          witness in person.
               51.   The  requirement to obtain written
          consent  is  a  problem  when  a  witness  is
          willing  to  agree to a telephonic  interview
          but  not willing to meet the investigator  in
          person, as there is inevitably a delay.
               52.   The  requirement to obtain written
          consent   to   an   interview   negates   the
          possibility  of  an  impulsive  interview  --
          taking  advantage of bumping into someone  --
          unless  the  investigator or attorney  always
          carries consent forms.
               53.      This    requirement    presents
          particular difficulties for investigating  in
          rural  Alaska,  because so much investigating
          must  be  done by telephone and  it  is  very
          difficult  to  get written consent  in  those
          circumstances.  Grace Cross described how she
          is   responsible  for  investigations  in  32
          villages; it is very expensive to travel, and
          weather  can be a major factor in her ability
          to  go somewhere.  Thus, she must do most  of
          her  investigating by telephone.   She  finds
          that  a lot of people are willing to talk  to
          her,  but  not  willing to be taped,  and  in
          those  situations  she  must  obtain  written
               54.   There are few fax machines in  the
          villages.  Even a witness willing to talk  on
          the  phone may be unwilling to take the  time
          to  go somewhere, fill out a form, and fax it
          back.   Communications across phone lines  in
          rural  Alaska  are  not  always  easy.    For
          example, there are only three telephone lines
          to  Little Diomede.  Many people do not  have
          their  own phone, and they have to  go  to  a
          public  phone  or to a neighbors  house,  and
          people dont like to do that because they dont
          want to attract attention.
               55.   If  Ms. Cross is able to  reach  a
          person  by  phone, she can read the  required
          warnings  and have the person agree  to  them
          orally,  but  then she must arrange  for  the
          person  to  receive, sign, and fax  back  the
          written consent form.  She tries to call  the
          city office, IRA office, or school to arrange
          for  the  person to receive a fax there,  but
          many times people dont want to go to a public
          place.    Most   of  the  time   the   police
          department  is  housed in  the  city  office.
          Often   there  is  a  cost  associated   with
          receiving  and  sending a long  distance  fax
          (typically $1.00).  Further, the person needs
          to  write his or her name and the name of the
          person who sent or received the fax on a list
          that is left in the public office.  For these
          reasons, it is rare for a person to agree  to
          go  to  a  public  place  (often  the  police
          department), wait for a fax, pay  $1-2,  then
          go home to await a call back from the defense
               56.   Ms.  Cross  finds  that  she  must
          travel  more  now in order to obtain  written
          consents  in face-to-face interviews.   There
          are many hardships associated with travel  in
          bush Alaska.
     53    Standards for Criminal Justice 4-4.3 cmt. (1993).

     54    Gregory, 369 F.2d at 188.

     55    AS 12.61.100.

     56    Ch. 64,  17-20, SLA 1996.

     57     Hearing  on  H.B.  314 before the  H.  Comm.  on  the
Judiciary, 19th Leg. 79-80 (Alaska 1996) (Statement of  Rep.  Con
Bunde, Member, House Comm. on the Judiciary).

     58    The court stated:

               AS  12.61.125(a)(2)(B) requires, in  sex
          offense  cases, for victims and witnesses  to
          consent  to be interviewed in writing.   This
          court has already ruled that with respect  to
          victims, requiring consent is constitutional.
          The  narrow question as it applies to victims
          of  sexual offenses is whether the additional
          requirement that the consent be in writing is
          constitutional.  Some evidence suggests  some
          victims  may not understand they do not  have
          to  speak  with defense investigators.   This
          court  has  recognized that some  victims  of
          sexual    assault    may   be    particularly
          vulnerable,  but the evidence does  not  show
          that  verbal  consent as opposed  to  written
          consent  improves understanding of  a  person
          giving  or  denying consent, or protects  the
          privacy  interest.  Further,  this  court  is
          concerned  about  the disparate  impact  this
          requirement may have on conducting interviews
          in  the bush.  Indeed, given the evidence, it
          would  probably  enhance  the  privacy  of  a
          victim  to  speak  on the  phone,  with  oral
          consent, rather than have a document faxed to
          a public place for a signature.
     59    The court stated:

               This  provision  also  requires  written
          consent from witnesses in a sex offense case.
          The  restrictions  apply  to  all  witnesses,
          including  police officers, lab  technicians,
          friends of the defendant, and people who  may
          have  had  some  contact with the  victim  or
          defendant before or after the crime.  As with
          any crime, there may be witnesses who have an
          emotional involvement in the case or who  are
          especially vulnerable.  The evidence  in  the
          record   does  not  establish  a  basis   for
          restricting  defense  interviews   with   all
          witnesses  in  sexual offense  cases,  absent
          written  consent.  The provision is overbroad
          . . . .
     60    The superior court made the following findings on this

               73.    Victim  advocates  are  concerned
          about  the way that police treat victims,  as
          well as about the way defense representatives
          treat   victims.    Victims   sometimes   are
          confused about whether they have to  talk  to
          the   police  or  the  prosecutor,  and  some
          complain  about the way they are  treated  by
          the police and prosecutors.
               74.    One   victim  advocate  witness[]
          opined  that  it  would be very  helpful  for
          victims  to  know  that they  have  a  choice
          whether  to talk with the prosecutor  or  the
          police.   It  would be helpful to victims  if
          all  the people who deal with a victim  would
          tell her whether she is or is not required to
          speak to that person.
     61     In Washington v. Texas, 388 U.S. 14 (1967), the Court
struck  down  a  Texas  statute that precluded  an  accused  from
calling  witnesses who were coparticipants in the  crime  charged
but that permitted them to testify for the state.  The underlying
justification for the statute was the prevention of perjury.  Id.
at   20-21.   In  part  because  of  the  one-sidedness  of   the
prohibition,  the  Court declined to credit  this  justification.
Id.  at 22.  Similarly in the present case, the one-sidedness  of
the  advice  required  to be given casts  doubt  on  the  offered
justification that the objective is simply to give legal advice.

     62     The  no-contact  prohibition as it  applies  to  oral
statements is not discussed in any of the briefs.

     63    A no-contact form in the record provides:

                   Re:   State v. ________________
                    Case No. _______________
                    Alaska Statute 12.61.125
          To whom it may concern:
          I  understand I have a right, as a victim  of
          this  crime, to decline any contact from  the
          defendants  lawyer,  or  an  investigator  or
          other   person  acting  on  behalf   of   the
          defendant.  I request that this letter  serve
          as notice that I wish to exercise that right.
          (Note:  If you choose to exercise your  right
          to  not be contacted by the defense, fill out
          this  form,  then return it to  your  contact
          person  in the District Attorneys Office  who
          will send it to the defendants attorney.)
Although  the  form in the record applies only  to  victims,  the
court found that forms are also commonly provided to witnesses in
some districts.

     64    The court made the following findings on this subject:

               60.    Without  no-contact  forms,  some
          .  .  . witnesses in sex offense cases agreed
          to  talk  with  defense  investigators  after
          receiving  the  warnings in AS  12.61.120(c).
          Some  refused  to talk on first request,  but
          agreed if asked a second time.
               61.   [Defense investigator] Grace Cross
          often  sees the same people again as  victims
          in  sexual  offense cases.  People  who  were
          willing  to  talk  with her before  1996  now
          sometimes sign no-contact forms refusing  any
     65    369 F.2d 185 (D.C. Cir. 1966).

     66    Id. at 188.

     67     Although  undisclosed recording is not unethical  for
lawyers,  a  lawyer may not represent that an  interview  is  not
being recorded when in fact it is.  ABA Comm. on Ethics and Profl
Responsibility, Formal Opin. 01-422 (2001).

     68    Id.

     69    Id. (emphasis added) (footnotes omitted).

     70    Alaska Bar Assn, Ethics Opinion No. 2003-1, Undisclosed
Recording of Conversations by Lawyer (2003).

     71      The   court  found  Austins  testimony  particularly

     72    Alaska Const. art. I,  24.

     73     Article  I, section 22 provides:  The  right  of  the
people to privacy is recognized and shall not be infringed.   The
legislature shall implement this section.

     74    583 P.2d 872 (Alaska 1978).

     75    684 P.2d 127 (Alaska 1984).

     76    608 P.2d 737, 743 n.5 (Alaska 1980).

     77    Id.

     78    711 P.2d 1156, 1157-58 (Alaska 1985).

     79    Id. at 1159-60.

     80    Id. at 1161.

     81    Id.

     82    Id.

     83    Id. at 1164-65.

     84    Id. at 1162.

     85     Id. at 1162 n.20 (citing City & Borough of Juneau  v.
Quinto, 684 P.2d 127 (Alaska 1984)).

     86    684 P.2d 127 (Alaska 1984).

     87    583 P.2d 872 (Alaska 1978).

     88    Quinto, 684 P.2d at 128.

     89    Id.

     90    Id. (citation omitted).

     91    Id. at 129 (citation and footnote omitted).

     92    As the United States Supreme Court has observed:  Every
experienced  trial  judge and trial lawyer knows  the  value  for
impeaching  purposes of statements of the witness  recording  the
events  before time dulls treacherous memory.  Dennis  v.  United
States, 384 U.S. 855, 872 n.19 (1966) (quotation omitted).

     93    See Davis v. Alaska, 415 U.S. 308 (1974).  In Davis the
trial court refused to permit an important prosecution witness to
be cross-examined concerning his juvenile record.  Id. at 310-11.
The  trial  courts ruling was based on a state statute  and  rule
precluding   the   admission  of  evidence  concerning   juvenile
convictions.   Id.  at  311.  Although this  court  affirmed  the
decision  of  the superior court, id. at 314, the  United  States
Supreme  Court reversed, indicating that the juveniles  interests
designed to be protected by the statute and rule were necessarily
subordinate  to the due process based right to cross-examination.
Id. at 318.  The Court stated:

          Whatever temporary embarrassment might result
          to  Green or his family by disclosure of  his
          juvenile  record  if the prosecution insisted
          on  using him to make its case  is outweighed
          by   petitioners  right  to  probe  into  the
          influence  of possible bias in the  testimony
          of a crucial identification witness.
               . . . .
            [W]e  conclude that the States desire  that
          Green fulfill his public duty to testify free
          from  embarrassment and with  his  reputation
          unblemished  must fall before  the  right  of
          petitioner  to  seek out  the  truth  in  the
          process of defending himself.
               The States policy interest in protecting
          the  confidentiality of a juvenile  offenders
          record cannot require yielding of so vital  a
          constitutional right as the effective  cross-
          examination for bias of an adverse witness.
Id. at 319-20.

     94     AS  12.61.120(c)(1) provides:  If a  defendant  or  a
person acting on behalf of a defendant contacts the victim of  an
offense  with  which the defendant is or could  be  charged,  the
person  shall  clearly  inform the  victim  (1)  of  the  persons
identity  and  specific  association  with  the  defendant.    AS
12.61.120(d)(1) provides:

               If  a  defendant or a person  acting  on
          behalf  of  a  defendant  wishes  to  make  a
          recording of statements of the victim  of  an
          offense with which the defendant is or  could
          be  charged  in this or another jurisdiction,
          or  of  a  witness, the person shall,  before
          recording begins, obtain the consent  of  the
          victim or witness to record the statement  by
          clearly  informing the victim or witness  (1)
          of  the  information set out in (c)  of  this
1    Slip Op. at 14.

     2    Slip Op. at 36.

     3     Alaska  Const. art. I,  22.  See also State v.  Glass,
583  P.2d  872  (Alaska 1978); Anderson v. State,  555  P.2d  251
(Alaska 1976); Ravin v. State, 537 P.2d 494 (Alaska 1975).

     4     Glass, 583 P.2d at 875.  See also Cowles v. State,  23
P.3d 1168, 1176 (Alaska 2001) (Fabe, J., dissenting) (noting that
in   Glass   we   expressed  grave  concerns   about   electronic
surveillance  technologies  and their  effect  on  the  right  of
persons to determine for themselves when, how, and to what extent
information  about  them  is communicated  to  others   (citation

     5    Slip Op. at 39-44.

     6     City & Borough of Juneau v. Quinto, 684 P.2d 127,  129
(Alaska 1984).

     7    Stephan v. State, 711 P.2d 1156, 1162 (Alaska 1985).

     8    Quinto, 684 P.2d at 129.

     9    Slip Op. at 43.

     10   Slip Op. at 43.

     11   Quinto, 684 P.2d at 129 n.7.

     12   Id. at 129 n.8.

     13   Id. at 129.

     14   Slip Op. at 43.

     15   See Polk County v. Dodson, 454 U.S. 312 (1981) (holding
that a public defender does not act under color of state law when
performing  a  lawyers traditional functions  as  counsel  to  an
indigent defendant in a state criminal proceeding).

     16   Slip Op. at 36, 39-43.

     17   Alaska Const. art. I,  22.

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