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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
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| STATE OF ALASKA and ALASKA | ) |
| OFFICE OF VICTIMS RIGHTS, | ) Supreme Court Nos. S- 11988/12007 |
| ) | |
| Appellants/Cross-Appellees, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-97-649 CI |
| ) | |
| JOHN M. MURTAGH, JAMES H. | ) O P I N I O N |
| McCOMAS, CYNTHIA STROUT, | ) |
| SIDNEY K. BILLINGSLEA, and | ) |
| HARRY DEE TAYLOR, | ) |
| ) | |
| 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
Appellees/Cross-Appellants.
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.
I. PROCEEDINGS
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
interview.7
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
12.61.125(a)(2)(B).
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.
II. STANDARD OF REVIEW
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
III. DISCUSSION
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
clause.
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.
1984).
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
rational.19
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
interview;36
(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
interviews.47
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
margin.52
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
purpose:
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
justification.
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
crime.
E. The Provision Enforcing No-Contact Statements of
Witnesses
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
exercised.
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
valuable.
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
recording.
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
investigators.
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
omitted.)
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
evidence.77
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
trial.83
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
officers.[90]
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.
IV. CONCLUSION
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
privacy.
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
confines.7
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
recorded.8
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;
and
(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
given.
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,
unless,
(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
12.61.120.
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
government).
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-
4.3(d).
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
consents.
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
investigator.
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
subject:
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:
NOTICE TO DEFENSE REPRESENTATIVES
OF REQUEST NOT TO BE CONTACTED
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.
____________________
__
(Your
Signature)
Date:_______________
___
(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
contact.
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
credible.
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
section.
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
omitted)).
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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