concurring and dissenting.
I agree with the majority’s resolution of most of the issues in this case. I disagree, however, with the treatment given to both Harris’s contention that his statement to the Anchorage Police should have been suppressed and his contention that the trial court unduly restricted his right to cross-examine the author of his presentence report.
THE ANCHORAGE STATEMENT
Harris argues that the statement which he gave in Anchorage should be suppressed because the police did not tape-record most of the interview. He contends that as a result he was handicapped in convincing the trial court that his version of the events, rather than the investigating officer’s version, was true. Consequently, he contends the trial court should have suppressed his Anchorage statement. He relies on Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215, 218 (1963), Anchorage v. Serrano, 649 P.2d 256, 259 (Alaska App.1982), and Lauderdale v. State, 548 P.2d 376, 381 (Alaska 1976). See also United States v. Valenzuela-Bernal, 458 U.S. 858, 872, 102 S.Ct. 3440, 3449, 73 L.Ed.2d 1193, 1205 (1982); United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); Williams v. State, 629 P.2d 54, 64 (Alaska 1981); Wyrick v. State, 590 P.2d 46 (Alaska 1979); White v. State, 577 P.2d 1056, 1059 (Alaska 1978); Torres v. State, 519 P.2d 788, 795 (Alaska 1974).
The cited cases discuss the prosecution’s dual responsibility to (1) preserve evidence favorable to the accused that it has acquired in the course of its investigation, and (2) to turn that evidence over to the defendant for use in his defense. We have recognized, in addition, that the due process clause, under certain circumstances, may require the prosecution to obtain evidence for use by the defendant that it would not ordinarily have sought on its own behalf. In Anchorage v. Serrano, we said:
The state and municipality have pointed out that while Lauderdale involved the preservation of evidence already in existence, the instant ease poses a situation in which the evidence must first be gathered prior to preservation. We do not believe that Lauderdale can be restricted to merely require the state to preserve existing evidence. It appears to us that there are instances when due process can require additional testing or investigation, such as where the additional evidence so obtained is of sufficient materiality and where the cost and effort involved in obtaining it are reasonable. See Mallott v. State, 608 P.2d 737, 743 n. 5 (Alaska 1980) (law enforcement agencies advised that as part of their duty to preserve evidence it is incumbent upon them to tape record questioning of the defendant where feasible).
649 P.2d at 258-59 (footnote omitted).
In a recent decision, State v. Contreras, 674 P.2d 792, 821 (Alaska App.1983), we summarized the holdings of the federal and Alaska cases requiring the prosecution to preserve evidence as follows:
Alaska cases discussing the prosecution’s failure to preserve evidence require a finding that the evidence would have affected the outcome before a sanction, including suppression of evidence, is warranted. Where a specific rule or court decision requires preservation of certain evidence, and the defendant makes a timely request for that evidence but it is missing, prejudice to the defendant will be presumed unless the state sustains the burden of proving that it acted in good faith and that the evidence, if preserved, would not have helped the defendant. If, after considering the whole record, the court is in doubt regarding prejudice to the defendant or the prosecution’s good faith, then a sanction is warranted. See Putnam v. State, 629 *410P.2d 35, 44 n. 18 (Alaska 1980). Where no specific rule or court decision requires the prosecution to preserve the evidence in question, however, the defendant bears the burden of proving that, if preserved, the evidence would have been exculpatory, see Alaska R.Crim.P. 16(b)(3), and that the prosecution should have recognized that it might be exculpatory and preserved it. See Nicholson v. State, 570 P.2d 1058, 1064 (Alaska 1977). Similarly, where there is no timely request for the evidence, the defendant must establish the materiality of the missing evidence. See Maloney v. State, 667 P.2d 1258, 1263-67 (Alaska App.1983); Carman v. State, 658 P.2d 131, 139-40 (Alaska App.1983).
It is undisputed that Harris made a timely request for a transcript of the recording of the entire Anchorage interrogation. It appears that the state controlled the decision whether to record the interrogation and Harris had no comparable opportunity to keep a record of what was said. It appears equally undisputed that a specific rule derived from case law required the Anchorage police to record its interview with Harris. The supreme court first announced this rule in Mallott v. State, 608 P.2d 737, 743 n. 5 (Alaska 1980), where the court said:
At trial, Mallott did not testify that the outburst [an angry and humiliating outburst against him during interrogation by a trooper who was not conducting the interrogation] preceded his statements. His claim on appeal is solely the result of a misreading of the trooper’s trial testimony. It is appropriate at this time however, to advise law enforcement agencies that as part of their duty to preserve evidence, see Catlett v. State, 585 P.2d 553, 558 n. 5 (Alaska 1978), it is incumbent upon them to tape record, where feasible, any questioning and particularly that which occurs in a place of detention. See Uniform Rule of Criminal Procedure, Rule 243 (10 U.L.A. 57) (1974).
As we recognized in Serrano, the duty described in Mallott was squarely predicated on the due process clause of the United States Constitution. 649 P.2d at 259. The Mallott decision clearly adopted Uniform Rule of Criminal Procedure 243, and directed police agencies to comply with it. Uniform Rule of Criminal Procedure 243, which is set out verbatim in the majority opinion, unambiguously provides:
A person who is in custody or otherwise deprived of his freedom of action in any significant way may not be questioned regarding any offense unless preliminary to questioning:
(1) He is warned of each of the matters specified in Rule 212(b) and asked whether he understands each of them; and
(2) Having had reasonable opportunity to exercise his rights, he expressly, voluntarily, knowingly, and intelligently waived each of them and expressly stated that he is willing to answer questions.
If the person in any manner indicates he desires to consult with a lawyer or desires it to stop, questioning shall stop. The information of rights, any waiver thereof, and any questioning shall be recorded upon a sound recording device whenever feasible and in any case where questioning occurs at a place of detention. Compliance with Rules 211(b) and 311 may not be delayed for the purpose of questioning.
Unif.R.Crim.Pro. 243, 10 U.L.A. 57 (1974) (emphasis added).
As the majority notes, the commentary states:
This [rule] will aid the courts in accurately determining whether there has been compliance with the warning and waiver requirements and to accurately determine the contents of an admission or confession. Sound recordings appear to be the most effective way for the prosecution to meet the “heavy burden” of demonstrating a knowing and intelligent waiver imposed upon it by Miranda ....
Unif.R.Crim.Pro. 243 commentary at 57-58. Accord Model Code of Pre-Arraignment Procedure § 130.4(3) at 38 (1975).
*411It is undisputed, and the majority concedes, that it was feasible to record the entire interview with Harris. However, testimony at Harris’s suppression hearing established that the Anchorage police have adopted a policy, contrary to this rule, of only recording actual confessions. Although the police had sound equipment readily available, they only recorded Harris’s ultimate confession. While Judge Carlson chose his words very carefully, it is clear that he joined in the police department’s intentional rejection of the rule adopted by the supreme court. Essentially, he concluded that the rule was a bad rule and should not be followed. Surprisingly, the majority affirms this conclusion. The majority’s reasoning apparently rests on three assumptions: first, that the supreme court really did not mean what it said; second, that decisions of the Alaska Supreme Court should only be followed by the lower courts when they are supported by case law from at least one other jurisdiction; and third, that enforcement of the rule would deprive the police of a number of accurate confessions.
I cannot see how it can be argued that the supreme court did not mean what it said in Mallott. The court has repeated its admonition in two subsequent cases: McMahan v. State, 617 P.2d 494 (Alaska 1980), cert. denied, 454 U.S. 839, 102 S.Ct. 146, 70 L.Ed.2d 121 (1981), and In re S.B., 614 P.2d 786 (Alaska 1980). In McMahan the court said:
Again we advise law enforcement agencies that, as part of their duty to preserve evidence, it is incumbent upon them to tape record, where feasible, any questioning and particularly that which occurs in a place of detention. Mallott v. State, 608 P.2d 737, 743 n. 5 (Alaska 1980). Furthermore, as we stated in In re S.B., 614 P.2d 786, 790 n. 9 (Alaska 1980):
It will be a great aid to the trial courts’ determinations and our own review of the record if
an electronic record of the police interview with a defendant is available from which the circumstances
of a confession or other waiver of Miranda rights may be ascertained.
In addition, if Miranda rights are read to the defendant, this too should be recorded.
617 P.2d at 499 n. 11.
Equally untenable is the majority’s suggestion that the rule should not be enforced because no other court has embraced it. Essentially, this reiterates the unacceptable position that the rule is a bad rule and should not have been adopted in the first place. I disagree. Professor Kamisar has set out the arguments in favor of the rule at length in his article: Kamisar, Forward: Brewer v. Williams—A Hard Look at a Discomfitting Record, 66 Geo. L.J. 209 (1977). It is unnecessary to quote these reasons at length. His conclusion however bears repetition:
It is not because a police officer is more dishonest than the rest of us that we should demand an objective recordation of the critical events. Rather, it is because we are entitled to assume that he is no less human — no less inclined to reconstruct and interpret past events in a light most favorable to himself — that we should not permit him to be “a judge of his own cause.”
Kamisar at 242-43 (footnote omitted). See also Williams, The Authentication of Statements to the Police, Crim.L.Rev., Jan. 1979 at 6; Model Code of Pre-Arraignment Procedure § 130.4 commentary at 341-50 (1975).
Even if the Mallott rule was ill-conceived, we would still be obligated to follow it. People v. Rincon-Pineda, 14 Cal.3d 864, 123 Cal.Rptr. 119, 538 P.2d 247, 252-53 (1975); Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937, 939-40 (1962) (lower court exceeds its jurisdiction when it refuses to follow decision of higher court on ground that the decision is erroneous).
Of course, it would be unfortunate for police and prosecutors to be deprived of the use of accurate confessions. Even so, the principles barring retroactive application of *412court decisions should not stand in the way of the enforcement of the Mallott rule in this case. See United States v. Johnson, 457 U.S. 537, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982); State v. Glass, 596 P.2d 10 (Alaska 1979). Mallott, after all, was decided on February 22, 1980, almost one year before Harris was interrogated in Anchorage. It cannot be persuasively argued that the police were reasonably ignorant of the Mallott decision.
The police offered two justifications for not recording their interview with Harris. First, they contended that following the Mallott rule would require wasting cassettes since it is never clear when interviewing a witness that he will confess. I do not think this argument requires rebuttal: See Model Code of Pre-Arraignment Procedure § 130.4 commentary at 342-43. The primary reason for failing to record is the fear of the police that recording an interview with a criminal suspect will frighten the suspect and chill any willingness he might have to confess. This argument rests on the assumption that a criminal suspect in custody must be told that his comments are being recorded. There is no such requirement.1 As Professor Kamisar notes, “[cjourts which have considered the question have held that secret recording of police interrogation does not, in itself, affect the admissibility of statements.” Kamisar, at 237 n. 122, quoting Model Code of Pre-Arraignment Procedure § 130.4(2) commentary at 349. He continues:
The Model Code does provide that an arrestee be informed that a sound recording is being made, but recognizes that this requirement “raises a difficult question” [commentary] at 348. Such a requirement does minimize the possibility that an arrestee will be misled about the seriousness of his situation, but knowledge that they are being recorded may make many reluctant to speak, even those who would not be inhibited by the knowledge that what they were saying was being reduced to writing, (although it could lead some to talk more freely, secure in the knowledge that they would not be misquoted).
Informing the arrestee that what he may say will be recorded is probably preferable, but I do not feel strongly about it. The important thing is that wherever feasible all conversation between the police and a person in custody be tape recorded, whether or not the person is informed that this is taking place. If the price for a system requiring sound recordings of the warnings, any waivers or other responses, and any subsequent conversation is that the suspect need not be told that a sound recording is being made, I would be quite willing to pay it.
Kamisar, at 237-38 n. 122 (citation omitted). Whatever the rule in most jurisdictions, our supreme court has squarely held that there is no duty to tell someone in custody that his statements or movements are being recorded. Palmer v. State, 604 P.2d 1106, 1108 (Alaska 1979). Accord People v. Crowson, 33 Cal.3d 623, 190 Cal.Rptr. 165, 660 P.2d 389, 392 (1983). Our decision in Quinto v. Juneau, 664 P.2d 630, 635-36 (Alaska App.1983), petition for heating granted, August 8, 1983, is not to the contrary. There we held that the warrant requirement of State v. Glass, 583 P.2d 872 (Alaska 1978), must be read to include situations involving routine, non-consensual recording of pre-arrest conversations between citizens and uniformed officers. 664 P.2d at 636. It is clear in context that the Quinto rule only applies to those who are not “in custody” and therefore not entitled to Miranda warnings. See O’Neill v. State, 675 P.2d 1288, 1290-1291 (Alaska App.1984) (Quinto does not apply when recording is commenced at the time of a lawful stop or arrest). It is equally clear that Harris and those similarly situated are in custody and therefore outside the protections of Quinto.
*413In summary, the Alaska Supreme Court in Mallott adopted Uniform Rule of Criminal Procedure 243 as a rule of decision in this state, based upon an interpretation of the due process clause of the state and federal constitutions. Since the police violated that rule in this case, and I believe the majority concedes as much, the rule of Putnam v. State, 629 P.2d 35, 43-44 (Alaska 1980), comes into play:
The state’s failure to comply with these disclosure requirements, due to its loss or destruction of the evidence in question, does not automatically trigger the imposition of sanctions. Rather, the trial court must carefully examine the circumstances surrounding the state’s violation of its duty of preservation. What, if any, sanctions are appropriate is to be determined by weighing the degree of culpability involved on the part of the state, the importance of the evidence which has been lost, and the evidence of guilt which is adduced at trial. Where the evidence in question was destroyed in bad faith or as part of a deliberate attempt to avoid production, sanctions will normally follow. On the other hand, where it appears that the evidence was lost or destroyed in good faith, the imposition of sanctions will depend upon the degree to which the defendant has been prejudiced. In cases where the defendant cannot reasonably be said to have been prejudiced by the state’s good faith failure to preserve the evidence, sanctions will generally not be appropriate. Where, however, the defendant has suffered prejudice, sanctions will generally be warranted. Just what sanction, is appropriate in a given case is best left to the sound discretion of the trial court. [Citations omitted; footnotes omitted.]
Thus the proper course to follow depends upon a determination of the state’s good faith,2 and the materiality of the evidence lost. In commenting upon this decision making process, the supreme court added:
In applying this rule, the heavy burdens of establishing that the failure to preserve the evidence occurred in good faith and not out of a desire to suppress evidence and of demonstrating that the defendant has suffered no resulting prejudice rests squarely on the shoulders of the state. Moreover, the difficulties involved in speculating whether or not the lost or destroyed materials could have been utilized effectively at trial mandate that the harmless error doctrine be strictly applied in these cases.
Id. at 44 n. 18 (citations omitted).
In essence, the supreme court in Putnam required trial courts to fashion a “remedy” for the loss of evidence. It is unfortunate that the court used the term “sanction,” in place of the term “remedy,” for as the court pointed out in Williams v. State, “the purpose of the duty of preservation is not to punish the police but to insure a fair trial for the accused.” 629 P.2d 54, 64 n. 22 (Alaska 1981), quoting State v. Wright, 87 Wash.2d 783, 557 P.2d 1, 7 (1976). See also Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215, 218 (1963).
The remedy should serve two purposes. The first is corrective. It should attempt to place the defendant in the same position *414he or she would have been in had the evidence been preserved and turned over in time for use at trial. The second purpose is preventative. It should deprive the state of any advantage gained by the failure to preserve the evidence, thus encouraging compliance with the rule in the future. It appears to me that the only reasonable remedy likely to serve these two goals is suppression of the confession in cases in which the defendant testifies to facts which, if true, would invalidate the confession, and the police officer’s contradictory testimony is uncorroborated.3 Essentially, Harris challenged his confession not on the ground that it was untrue, but on the ground that it was obtained in an unconstitutional manner. In order to sustain this claim, he sought to show: first, that Miranda warnings were not properly and timely given; and second, that the requirements of Miranda, that interrogation cease if the defendant expresses an unwillingness to be interrogated or requests an attorney, were not complied with. Alternatively, he wished to show that his confessions were the product of unconstitutional inducements and were therefore involuntary. Such claims invariably produce a swearing contest in which defendants claim that they were not afforded their constitutional rights and the police officers claim that they were. Since defendants are interrogated in custody, isolated from anyone other than police officers, they cannot provide independent corroboration of their own testimony regarding what occurred during the interrogation. In a sense then, a tape recording provides an objective means for evaluating what occurred during interrogation. It also provides the defendant with a means of “cross-examining” his confession in the sense that the Lauderdale court referred to cross-examining breathalyzers, i.e., testing the accuracy of what occurred during the interrogation by independent evidence. See 548 P.2d at 381. The importance of such a tape recording lies in the fact that trial courts and appellate courts tend to trust police officers’ recollections of what occurred at the expense of the criminal defendant’s account. Thus, in the absence of a tape recording, the prosecuting authorities invariably win the swearing contest. The heavy burden of proving compliance established by Miranda becomes, in practice, no burden at all. The majority ignores this result of the absence of a tape recording and apparently concludes that an admonition to the trial courts to consider the absence of a tape recording in evaluating the credibility of prosecution witnesses will suffice to protect the defendant’s due process rights. Such a “remedy” clearly does not serve the corrective function of placing the defendant in the position he would have been in had the evidence been preserved. Nor does it serve the preventative function since, as this case and its companions demonstrate, despite the admonition, trial courts will continue to resolve conflicts in favor of the prosecuting authorities. It is instructive that the court does not remand this case to the trial court for reconsideration in light of its conclusion that the police officer’s testimony should have been viewed with distrust. The officer’s testimony was not corroborated and it is clear Judge Carlson did not view the officer’s testimony with distrust.
DENIAL OF CONFRONTATION
Harris contends that he was denied the right to cross-examine the author of the presentence report. The record bears this out. Judge Ripley clearly informed counsel that no cross-examination would be permitted. It is important in this context to recognize that the presentence officer did more than simply summarize information *415received from others. The probation officer offered an expert opinion that Harris could not be effectively deterred or rehabilitated by a non-incarcerative sentence. Under the circumstances, I believe Harris should be entitled to a new sentencing at which he is given the opportunity to cross-examine the presentence officer regarding the basis for this opinion. See Mangold v. State, 613 P.2d 272, 276 (Alaska 1980). While some cursory treatment was given at the hearing to Harris’s expressed concerns about the presentence report, I believe that it was inadequate under the circumstances to establish harmless error. In Alford v. United States, 282 U.S. 687, 692, 51 S.Ct. 218, 219, 75 L.Ed. 624, 628 (1931), the United States Supreme Court said:
It is the essence of a fair trial that reasonable latitude be given the cross-examiner, even though he is unable to state to the court what facts a reasonable cross-examination might develop. Prejudice ensues from a denial of the opportunity to place the witness in his proper setting and put the weight of his testimony and his credibility to a test, without which the jury cannot fairly appraise them. To say that prejudice can be established only by showing that the cross-examination, if pursued, would necessarily have brought out facts tending to discredit the testimony in chief, is to deny a substantial right and withdraw one of the safeguards essential to a fair trial. [Citations omitted.]
The Alaska Supreme Court quoted this language with approval in Lauderdale v. State, 548 P.2d at 381, and analogized the right to test the reliability of a breathalyzer machine by a scientific analysis of the ampoules to the right to cross-examination. Relying on Alford, the court held: “[a] denial of the right to make such analysis, that is to say, to ‘cross-examine’ the results of the test, would be reversible error without any need for a showing of prejudice.” Id. at 381, citing R.L.R. v. State, 487 P.2d 27, 44 (Alaska 1971).
The presentence officer plays a significant part in the sentencing process. Frequently, the only insight the trial court has into the underlying facts of the offense and the offender’s capacity for rehabilitation comes from the presentence report. While the trial court has substantial discretion in controlling the proceedings, I would hold that Judge Ripley committed prejudicial error in refusing to allow Harris reasonable opportunity to cross-examine the presen-tence officer regarding the opinions that the officer expressed in the presentence report.
. There is such a requirement in the Model Code of Pre-Arraignment Procedure § 130.4(3) at 38 (1975).
. The Supreme Court explains the significance of police “good faith” as follows:
The state argues that due process was not violated because the erasure was done in good faith. An officer’s good faith, however, does not justify destruction of material evidence. See White v. State, 577 P.2d [1056,] 1060 n. 14 [(Alaska 1978)]; Lauderdale v. State, 548 P.2d 376, 381-82 (Alaska 1976). See also Giglio v. United States, 405 U.S. 150, 154, 92 S.Ct. 763, 766, 31 L.Ed.2d 104, 109 (1972); State v. Wright, 87 Wash.2d 783, 557 P.2d 1, 4, 7 (1976). The reason is that the "purpose of the duty of preservation is not to punish the police but to insure a fair trial for the accused.” Wright, 557 P.2d at 7, citing Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196, 10 L.Ed.2d 215, 218 (1963). The motive for destruction is relevant only when the absence of a good faith explanation raises the inference that the evidence would have been detrimental to the prosecution, thus establishing materiality of the evidence. See People v. Hitch, 12 Cal.3d 641, 117 Cal.Rptr. 9, 18 n. 7, 527 P.2d 361, 370 n. 7 (1974); State v. Wright, 557 P.2d at 6-7.
Williams v. State, 629 P.2d 54, 64 n. 22 (Alaska 1981).
. Cf. Model Code of Pre-Arraignment Procedure § 150.3(5) (the state is required to prove compliance with Miranda by clear and convincing evidence where no recording is made).
The Model Code also "directs the court to give weight to the defendant’s account in any factual dispute if it finds that the police department has not set up procedures [full written records and sound recordings] to insure compliance with the Code or has not diligently and in good faith sought to comply with the recordkeeping provisions.” Model Code of Pre-Arraignment Procedure § 130.4 commentary at 343.