The opinion
BRYNER, Chief Judge,
dissenting.
I believe that the breaches in sequestration that occurred in the present case—particularly when considered together with the uncontroverted evidence of other impropriety by the jury and the bailiff—warrant application of the per se rule of reversal established in Kimoktoak v. State, 578 P.2d 594, 596 (Alaska 1978).
The right to a jury trial, a hallmark of our system of justice, is among the most basic protections afforded to the accused by our constitution. The per se rule of reversal adopted in Kimoktoak gives recognition to the paramount importance of assuring the integrity of the jury’s verdict. Kimoktoak likewise recognizes the impracticality of adopting any rule other than one of per se reversal.
Kimoktoak does suggest that relaxation of the per se rule may be appropriate for breaches of sequestration in which brief separations by some jury members result from “inadvertence or carelessness.” Id. at 596 n. 4. Implicit in this suggestion, however, is the notion that the per se rule of reversal should be relaxed only when the external circumstances surrounding a breach of sequestration assure that the breach was de minimus and had no effect on the jury’s deliberations.
When the external circumstances of a breach do not in themselves provide assur- *465 anee of a lack of prejudice, the only avenue available for determining prejudice becomes an inquiry into the deliberative process of the jury. The strong policy against delving into the internal deliberative process of a jury finds expression in Alaska Rule of Evidence 606(b), which provides, in relevant part:
Upon an inquiry into the validity of a verdict ..., a juror may not be questioned as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of any matter or statement upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict ... or concerning his mental processes in connection therewith....
In part, this rule reflects the strong need to protect the sanctity of jury verdicts; in part, it acknowledges the impossibility of determining the fairness of a verdict through the jury’s own subjective assessment of the process by which the verdict was reached.
The same concerns were expressed by the Alaska Supreme Court in Kimoktoak . As Kimoktoak indicates, once a break in sequestration occurs, it is both unrealistic and fundamentally unfair to impose upon the accused the burden of attempting to establish prejudice through inquiry of individual jurors. See, e.g., Kimoktoak, 578 P.2d at 596 . This unfairness may be somewhat mitigated, but is not cured, by shifting to the state the burden of disproving prejudice.
In the present case, the breaches in sequestration resulted neither from inadvertence nor from negligence. Rather, they stemmed from apparently knowing misconduct by a court official. While the breaches involved a limited number of jurors and were of short duration, it is undisputed that they enabled members of the jury to obtain and bring into the deliberative context substantial quantities of intoxicating liquor. Thus, despite the brevity of the separations and the limited number of jurors involved, the external circumstances surrounding the breaches do not provide assurance that they were de minimus. To attempt to assure the lack of prejudice, it became necessary to delve into the jury’s own assessment of the fairness of its verdict, a process that Kimoktoak condemns.
I would therefore hold that the present case is not an appropriate one for relaxation of Kimoktoak’s per se rule of reversal. Accordingly, I dissent from the majority’s decision to remand for further proceedings on the issue of prejudice.