dissenting:
I respectfully dissent because I believe that limiting cross-examination of the victim regarding his refusal to grant a pretrial interview violated the defendant’s right to confrontation under the United States and Arizona Constitutions.
The right to cross-examine a witness is a vital part of confrontation. Davis v. Alaska, 415 U.S. 308, 315-16, 94 S.Ct. 1105, 1109-10, 39 L.Ed.2d 347 (1974). However, cross-examination may be restricted based on concerns for harassment, prejudice, or marginal relevance. Michigan v. Lucas, 500 U.S. 145, 149, 111 S.Ct. 1743, 1746, 114 L.Ed.2d 205 (1991); State v. Fleming, 117 Ariz. 122, 125, 571 P.2d 268, 271 (1977). The balance between these competing interests hinges upon whether the defendant was denied the opportunity to present information bearing on the issues in the case or on the credibility of a witness. Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S.Ct. 1431, 1435-36, 89 L.Ed.2d 674 (1986); Fleming, 117 Ariz. at 125, 571 P.2d at 271.
A witness’s refusal to grant a pretrial interview is clearly relevant. In State v. Van Zile, 48 Ill.App.3d 972, 6 Ill.Dec. 747, 363 N.E.2d 429 (1977), the court reasoned:
The credibility of a witness is always an issue — more correctly, in issue. A refusal to talk in advance of trial to the other side reasonably could indicate hostility by the witness to the inquiring side, or at least a bias for, or an interest in, a favorable outcome for the side caking him. We say ‘could’ because triers of the fact need not invariably so conclude, but they reasonably can do so.
* * * * * *
Under our present system of liberal discovery, both sides at a minimum know the witnesses who wik oppose them. Admittedly, both sides have the right to attempt to interview the other’s witnesses. Admittedly too, witnesses have a corollary right not to be interviewed if they so choose. But this refusal, in our opinion, can be used against them to argue bias, hostkity, interest in outcome, ak of which look to credibkity. It is a risk the witness or his side takes. That there are reasonable inferences from such conduct cannot be gainsaid. Although they are not inexorable, they are reasonable. It is up to the trier of the fact to accept or reject them.
Id. 6 Ill.Dec. at 747, 363 N.E.2d at 429. See also People v. McCollum, 239 Ill.App.3d 593, *579180 Ill.Dec. 346, 607 N.E.2d 240 (1992) (state witness’s right to refuse defense interview is relevant to demonstrate bias, hostility, prejudice, or interest in outcome); People v. Allison, 236 Ill.App.3d 175, 177 Ill.Dec. 116, 602 N.E.2d 1288 (1992) (same); People v. Atteberry, 213 Ill.App.3d 851, 157 Ill.Dec. 365, 572 N.E.2d 434 (1991) (same); Lacy v. State, 629 So.2d 591 (Miss.1993) (same); Tolbert v. State, 511 So.2d 1368 (Miss.1987) (same); State v. Hallman, 137 Ariz. 31, 668 P.2d 874 (1983) (inquiry into defense witness’s refusal to honor State’s subpoena is relevant to credibüity). Whüe a victim’s refusal to be interviewed may be based on nothing more than a desire to be left alone, it must remain the jury’s prerogative to decide whether such a refusal reflects on the victim’s credibiHty. Van Zile, supra 6 Ill.Dec. at 747, 363 N.E.2d at 429. Refusing to aUow the cross-examination was unreasonable and violated the Defendant’s right to confrontation. State v. Taggart, 186 Ariz. 569, 925 P.2d 710 (App. 1996); Allison, supra; Atteberry, supra.
The Arizona Constitution does provide that a victim may “refuse an interview, deposition, or other discovery request by the defendant.” Ariz. Const. Art. II, § 2.1(A)(5). The majority characterizes this right as “absolute,” relying on dicta from State v. Roscoe, 912 P.2d 1297 (Ariz-App. February 29, 1996), which dealt with the constitutionality of classifying on-duty peace officers as “victims” under the Victims’ Rights Act. However “absolute” a victim’s right to refuse an interview may be under state law, it must clearly yield when it conflicts with the right to confront witnesses protected by the United States Constitution. Reynolds v. Sims, 377 U.S. 533, 584, 84 S.Ct. 1362, 1393, 12 L.Ed.2d 506, rehr’g denied, 379 U.S. 870, 871, 85 S.Ct. 12, 13 L.Ed.2d 76 (1964) (Supremacy Clause controls conflicts between state and federal constitutions); State ex rel Romley v. Superior Court In and For County of Maricopa, 172 Ariz. 232, 836 P.2d 445 (App.1992) (Victims’ Rights Act must yield to defendant’s rights to due process and effective cross-examination of witnesses).
Arizona Revised Statutes Annotated (“A.R.S.”) section 13-4433(E) provides:
If the defendant or the defendant s attorney comments at trial on the victim’s refusal to be interviewed, the court shaU instruct the jury that the victim has the right to refuse an interview under the Arizona Constitution.
I view this statute as a legislative acknowl-edgement that victims who refuse interviews are likely to be cross-examined about such refusal. The majority suggests that the statute was merely intended to cover situations where the victim’s refusal to be interviewed was inadvertently or improperly placed before the jury. If that is what the legislature intended, I presume it would have said so. But more important than that, if section 13-4433(E) is read to bar cross-examination of a victim about his refusal to grant an interview, it violates the doctrine of separation of powers. It is not within the purview of the legislature to define what evidence is relevant. See Barsema v. Susong, 156 Ariz. 309, 314, 751 P.2d 969, 974 (1988) (statute purporting to bar evidence of insurance coverage is unconstitutional).
I also find unconvincing the majority’s analogy of the victim’s right not to be interviewed to a defendant’s right to remain silent. A defendant’s right to remain süent springs from the constitutional safeguard against self-incrimination. Davis v. United States, 512 U.S. 452, -, 114 S.Ct. 2350, 2354, 129 L.Ed.2d 362 (1994); State v. Anderson, 102 Ariz. 295, 298, 428 P.2d 672, 675 (1967). It is rooted in the “distrust of self-deprecatory statements” and the desire to avoid putting a defendant into the “cruel trilemma of self-accusation, perjury or contempt.” Murphy v. Waterfront Comm’n of New York Harbor, 378 U.S. 52, 55, 84 S.Ct. 1594, 1596, 12 L.Ed.2d 678 (1964). On the other hand, a victim’s right to refuse a pretrial interview rests on the desire to protect a victim’s privacy and minimize contact with the defendant. State ex rel Dean v. City Court of Tucson, 173 Ariz. 515, 516, 844 P.2d 1165, 1166 (1992). The defendant’s right against self-incrimination is of more weight than the victim’s right not to be interviewed. Moreover, cross-examination of a victim about his refusal to grant an interview does not entail any more of an invasion of privacy or a contact with the defendant than that *580already inherent in the requirement that the victim testify at trial. S.A v. Superior Court In and For County of Maricopa, 171 Ariz. 529, 831 P.2d 1297 (App.1992) (Victims’ Rights Act does not give crime victim right to refuse to testify at defendant’s criminal trial). In other words, such cross-examination of the victim, unlike cross-examination concerning defendant’s exercise of his right to remain silent, does not defeat the purpose for which the right was established.
Violations of a defendant’s confrontation right are susceptible to harmless error analysis. Delaware v. Van Arsdall, 475 U.S. 673, 680, 106 S.Ct. 1431, 1435-36, 89 L.Ed.2d 674 (1986); State v. Medina, 178 Ariz. 570, 577, 875 P.2d 803, 810 (1994). The victim and the defendant were partners in a failing business, and at trial the victim asserted that the defendant was not authorized to sign the victim’s name on the business cheeks. Thus, the victim’s testimony was conceivably self-serving and restricting cross-examination precluded a thorough inquiry into his motive for denying the pretrial interview. The prejudice that ensues from this kind of error tends to be self-concealing. Nor do I believe the problem is solved because, on redirect examination, the witness simply said he denied a pretrial interview because he “did not want to [talk to defense counsel].” A friendly question by the prosecutor is hardly a substitute for cross-examination. Thus, I cannot find that the error was harmless beyond a reasonable doubt and would reverse.