holding that “it was not the intent of the Alaska Constitutional Convention, in adopting a portion of the wording of the Sixth Amendment, to give to article I, section 11 any broader application than that portion of the Sixth Amendment had been given by the United States Supreme Court”
How later courts described this case
- holding that “it was not the intent of the Alaska Constitutional Convention, in adopting a portion of the wording of the Sixth Amendment, to give to article I, section 11 any broader application than that portion of the Sixth Amendment had been given by the United States Supreme Court”
- extending right to counsel to prisoner from whom the police sought to obtain a handwriting exemplar after indictment and appointment of counsel
- extending the right to counsel to a prisoner from whom the police sought to obtain a post-indictment handwriting exemplar
- conviction reversed where defendant charged with forgery was required to give handwriting exemplars to police despite his request that his attorney first be contacted
Written by the judges who cited it.
The opinion
NESBETT, Chief Justice
(dissenting).
I agree with the majority’s decision except as it holds that the obtention of the handwriting exemplars violated appellant’s constitutional right to counsel. With that holding, I dissent.
The majority purports to overrule Knudsen v. City of Anchorage 1 to the extent that it holds that decisions of the Supreme Court of the United States construing provisions of the United States Constitution which are similar to those of the Alaska Constitution are “binding” on this court. The majority states that this holding is made applicable to “past or future” decisions of the United States Supreme Court.
In my opinion the majority has misconstrued Knudsen. That decision merely held that decisions of the United States Supreme Court which were of record at the time Alaska’s Constitution was created were intended by the Constitutional Convention to be given great weight by Alaska’s courts when construing identical provisions in the Alaska Constitution. This holding was based on the report to the Constitutional Convention of the Chairman of the Committee on Preamble and Bill of Rights of the Alaska Constitutional Convention, that in some instances in the Alaska Constitution wording identical to that contained in the United States Constitution was employed, because the particular provision in the United States Constitution “had served its purpose well and was suited to the needs of Alaska.” 2
*350 Since no past decision of the United States Supreme Court is involved in the case now before us and Knudsen did not purport to apply to decisions rendered by that court after the adoption of Alaska’s Constitution, the majority’s holding must be considered to be dictum. 3
The majority’s preoccupation with Knudsen appears to have been intended to lay the foundation for the fact that in its decision it intended to give absolutely no persuasive effect to the recent decision of the United States Supreme Court in Gilbert v. California. 4
On a set of facts very similar to those before us in the present case the Supreme Court of the United States in Gilbert held that the taking of handwriting samples from the defendant after his arrest and while in custody but without counsel, as a suspect of the crime of armed robbery, was not a “critical” stage of the criminal proceedings which entitled the accused to the assistance of counsel. As liberal as the Supreme Court of the United States has been in bestowing constitutional rights on those criminally accused, it was not convinced that any basic right of the accused had been prejudiced under those facts. The majority in the case before us holds that the taking of handwriting samples from appellant, who had been indicted for burglary, had court-appointed counsel, and was in custody, was done at a “critical” stage of the criminal proceedings and violated the accused’s constitutional right to counsel under that portion of Section 11, article I of the Alaska Constitution which states:
In all criminal prosecutions, the accused shall have the right * * * to have the assistance of counsel for his defense.
In the present case the accused was asked by the officers to give a handwriting sample; was told that the samples would be submitted to a handwriting expert for comparison tests; was told that he did not have to give a handwriting sample, but that if he refused a court order forcing him to comply could be obtained and that if he then refused to comply with the court order a contempt of court proceeding could result.
Everything the officers told the accused was correct in every respect. Criminal Rule 26(b) (3) states:
An accused in a criminal action has no privilege to refuse, when ordered by the court, to submit his body to examination or to do any act in the presence of the court or the trier of the fact, except to refuse to testify.
No right is conferred on the accused by the above rule. Its purpose was to make it abundantly clear that the accused could not refuse to submit to such examination. The majority has not pointed out wherein the accused has suffered any prejudice. If he had refused to give the handwriting sample a court order could not have been rightfully refused by a court. 5 Failure to obey the order would have been contempt of court.
The majority has reached the astounding-conclusion that the rule has conferred some new right on the accused, whereas the only purpose of the rule was to clarify the fact that an accused had no right to refuse to submit to such examination and that if he did refuse he could be forced to submit by a court order. In addition, the majority has misconstrued the rule to confer on accused a constitutional right to an adversary hearing and to be represented by counsel.
*351 By its holding today the majority has created a right in the accused not heretofore accorded by any state or federal court and has made even more difficult and tedious the task of the law enforcement officer in the investigatory stage. Furthermore, on a single set of facts, the majority has taken a mere rule of this court, which had the virtue of flexibility and could have been altered by this court to meet changing conditions, and, as Chief Judge Lum-bard has expressed it, “embedded it in the concrete of a constitutional decision of court.”
The jury found the appellant guilty of forging signatures to and/or passing three stolen payroll checks based upon the testimony of witnesses who identified the appellant as being the person who cashed the checks with forged signatures, upon the testimony of a handwriting expert, and upon the testimony of a fingerprint expert who testified that appellant’s finger and palm prints were found upon some of the checks.
In spite of adequate evidence of guilt, and even though the appellant could have been forced to give handwriting samples by court order if he had not voluntarily done so, the majority holds that:
we cannot say that this evidence [handwriting] did not appreciably affect the jury’s determination of the appellant’s guilt. * * * Therefore, the appellant’s conviction must be set aside and this case reversed and remanded for a new trial.
The majority explains that one reason for conferring the new constitutional right is that under such circumstances the accused is no match for a skilled investigator. In my opinion the majority would have been better advised to have considered whether, even with skilled investigators, it is not a fact of present day life that the investigator is no match for the overly protected accused. The views of Professor Wigmore seem particularly applicable when he states:
There seems to be a constant neglect of the pitiful cause of the injured victim, and the solid claims of law and order. All the sentiment is thrown to weight the scales for the criminal — that is, not from the mere accused, who may be assumed innocent, but for the man who upon the record plainly appears to be the offender that the jury have pronounced him to be. We have long since passed the period (as a modern judge has pointed out) ‘when it is possible to punish an innocent man; we are now struggling with the problem whether it is any longer possible to punish the guilty’ (citing Roper v. Territory, 7 N.Mex. [255] 272, 33 P. 1014 (1893)). 6
and the comment of Judge Learned Hand:
Our dangers do not lie in too little tenderness to the accused. Our procedure has been always haunted by the ghost of the innocent man convicted. It is an unreal dream. What we need to fear is the archaic formalism and the watery sentiment that obstructs, delays and defeats the prosecution of crime. 7 I would affirm the judgment.
Addendum to Dissent:
In a revision of pages 343-344 of its opinion the majority now attempts to distinguish Gilbert v. California, has decided not to attempt to interpret Criminal Rule 26(b) (3) in relation to article I, Section 9 of the Alaska Constitution, but adheres to its view that this constitutional provision required that counsel be present when the handwriting samples were taken from appellant.
It appears to me that the majority still confuses the taking of handwriting samples with those situations where an accused’s privilege against self-incrimination under the Fifth Amendment to the United States Constitution has been violated by compelling him to testify against himself or *352 otherwise to provide the state with evidence of a testimonial or communicative nature. The overwhelming weight of state and federal authority is that the taking of handwriting samples, where the content of the writing is not used to incriminate, is nothing more than one means of identification, to be equated with routine fingerprinting, police line-ups, modeling clothing, submitting to blood tests and other methods of determining physical characteristics. 1
The majority states that it bases the new constitutional right it has created on the accused’s right to counsel at a “critical” stage of the proceedings under the Alaska Constitution. On the other hand, it justifies the right to the presence of counsel during the taking of handwriting samples by the argument that the appellant was prejudiced without counsel because counsel:
(1) might have noticed improprieties where the accused, “probably frightened by the investigators”, did not;
(2) his attorney could have cross-examined the investigators and apparently prevented possible coercion or inaccuracies ;
(3) his attorney “could have bolstered Robert’s legal understanding” so that he could decide whether to give the samples;
(4) counsel could require the officers to seek a court order, rather than submit to the requirement that a handwriting sample be given.
All of the above reasons appear to be based principally on the fear that the accused is being required to give evidence against himself rather than to assist in identification. It appears to me that the majority has gone out of its way to presume possible prejudice. For example, is this court justified in assuming that an accused might be so “frightened” at being required to give a sample of his handwriting that it should create a constitutional right in his favor; is it realistic to assume that the cross examination of the officers while they are attempting to obtain a handwriting sample, absent a judge or other arbiter, will prevent coercion or inaccuracy rather than create impossible confusion in what should be a routine proceeding; is it necessary to “bolster” an accused’s “legal understanding” before he can intelligently decide to submit to a routine test which the law requires him to take?
Since the taking of a handwriting sample is merely one means of identifying an accused, and since it has now been decreed by this court that the accused has the right to the presence of counsel during this “critical” procedure, then it must follow that under the law of Alaska an accused is now entitled to the presence of counsel during fingerprinting, police line-ups, blood tests and during any other routine identification procedure.
The majority now states that appellant gave up the handwriting samples “only when threatened with contempt of court proceedings.” The testimony was that the officers stated that if he did not give the samples he could be ordered to do so by the court, and that if he refused to obey the court order, he could be punished for contempt of court. Appellant admitted,, during a hearing held out of the presence of the jury, that one of the officers told him that he did not have to give the sample but that if he did not, a court order would be obtained.
Finally, the majority now states that it was influenced in creating the new right to counsel under the Alaska Constitution “by the dubious ethical character of the government’s action in dealing directly with the accused after counsel had been appointed,” quoting Canon 9 of the Canons of Professional Ethics. The majority appears to be threatening to create additional constitutional rights in an accused based on the Canons of Professional Ethics. In my *353 opinion, the attitude of the majority when it states:
While we do not now hold that the United States and Alaska constitutions necessarily protect those accused of crime against breaches of professional ethics, this court will not eagerly adopt controversial constitutional interpretations which would encourage unethical be-haviour. (emphasis supplied)
amounts to outright arrogance.
If the Canons, which were designed only to govern the relationship between lawyers and the public, the courts and other lawyers, are to be held binding on the police, then it is for thé legislature to say so by statute. This court does not have the power to regulate the conduct of the police except indirectly and only to the extent that it may hold that such conduct has violated a constitutional right. As I read it, the majority has not yet transposed any- portion of the Canons into the United States or Alaska Constitutions, it only threatens to do so, although it creates ambiguity by stating:
After charges have been filed and counsel has been appointed or retained, the case is no longer only a police matter.
In my opinion, the majority is acting irresponsibly with relation to constitutional rights. It is, as Professor Wigmore describes it, “playing fast and loose with the constitution” when it attempts to accomplish what it considers to be needful reforms by basing them on constitutional rights. My opinion in this respect is based in part on the number of times the majority has reversed its constitutional field in attempting to find a basis for its holding in this case. This has created the impression that the majority first determined the result it considered desirable and then commenced searching for a suitable constitutional basis, rather than applying sound constitutional interpretations to the facts and abiding by the result.
. 358 P.2d 375, 378-379 (Alaska 1960).
. 358 P.2d at 378 .
These comments have no application to those provisions of the United States Constitution which have been held to be directly binding on the states by reason of the fourteenth amendment.
.However, and entirely aside from Knudsen, this court has always given great weight to analogous decisions of the United States Supreme Court, whether the provisions of the two constitutions were identical or merely similar. In construing our rules this court has specifically stated that federal authorities will be given weight. See Brown v. State, 372 P.2d 785, 789 (Alaska 1962).
. 388 U.S. 263 , 87 S.Ct. 1951 , 18 L.Ed. 2d 1178 (1967).
. The fact that one trial judge did refuse to order appellant to give additional samples is not before us for review and has no relevance.
. 1 Wigmore, Evidence, § 21, at 375 (3d ed. 1940).
. United States v. Garsson, 291 F. 646, 649 (2 Cir. 1923).
. See: Gilbert v. California, supra; Johnson v. Bennett, 291 F.Supp. 421 (S.D. Iowa 1968) ; United States v. Izlar, 293 F.Supp. 651 (D.C.1968); United States v. [Doe] Devlin, 405 F.2d 436 (2nd Cir. 1968); Abernathy v. United States, 402 F.2d 582 (8th Cir. 1968).