(dissenting).
The Alaska constitution guarantees to an accused in a criminal case the right “to have the assistance of counsel for his defense.” 1 The court construes this provision as requiring the presence of counsel at the time handwriting samples are obtained from the accused. I disagree with this interpretation of the constitution.
I am unable to see why the presence of counsel in this situation is necessary. The writing of one’s signature on a piece of paper is a simple, uncomplicated thing. The accused either writes his signature when requested to do so or he does not. I can see no disadvantage to him arising from his lack of knowledge or skill in the law. This is not a case where one is placed at a disadvantage by not having “the full benefit of a trained lawyer’s examination into the record, his research of law, his examination and cross-examination of witnesses * * * and his marshalling of arguments on the defendant’s behalf.”2
The court holds that there was prejudice to appellant “from the violation of his right to counsel at this critical stage of the proceedings.” It refers to certain “improprieties” which an attorney might have noticed but which appellant, as a layman, may have failed to perceive. I have no idea what the court is referring to — it does not give any inkling of what improprieties it believes might have been involved, or how they may have affected the quality of the handwriting samples given by appellant.
The court mentions as a further prejudicial factor that counsel, had he been present, could have “bolstered Roberts’ legal understanding so that he could make an intelligent decision about whether to yield the exemplars at that stage.” I do not know what difference it makes whether an accused gives handwriting samples while he is in jail awaiting trial or at some other stage of the proceedings in his case. A handwriting sample given by him is a *354sample of his handwriting whether given at one stage or another. I cannot see how this conld he affected by the absence or presence of a lawyer.
In speaking of prejudice to appellant, the court says that had its attorney been present at the time the handwriting samples were obtained, the attorney’s “cross-examination of the investigators as to the circumstances in which the exemplars were taken, including possible coercion or factors tending to produce inaccuracy, could have been grounded in personal knowledge.” I do not know how trial counsel, in cross-examining the investigators at the time of trial, could impart to the jury his “personal knowledge” of the circumstances in which the samples were obtained, short of appearing as a witness for his client. And the Canons of Professional Ethics, with which the court is concerned in its opinion, makes it quite clear that such a practice is not favored.3
In any event, it appears clear to me that appellant was placed at no disadvantage by reason of his counsel having had no personal knowledge of the circumstances in which the police obtained the handwriting samples from appellant. What these circumstances were is clear. The testimony of both appellant and Lt. Gibson shows that appellant did not want to give the handwriting samples when he was asked to do so, but did so when he was told that if he refused a court order would be obtained, and that if he did not comply with the order he would be prosecuted for contempt of court.
I can see no case of coercion here. Had appellant refused to give the samples, a court order could have been obtained requiring appellant to furnish the samples under Criminal Rule 26(b) (3).4 If appellant had still refused in the face of such an order, theri he could have been charged with contempt of the authority of the court.5 What Gibson did then, in prevailing upon appellant to give the samples, was to merely advise appellant of a legal method that would require him to give the samples if he were not willing to do so without resort to a court order. There was nothing unfair or. improper in the means used to obtain the handwriting samples from appellant.
Finally, the court believes appellant was prejudiced by the absence of counsel because “counsel might have forced the prosecutor to seek a court order, thereby testing the questions raised under Criminal Rule 26(b) (3) and Alaska Constitution article I, § 9 before yielding the exemplars.” These questions could have been as well tested at the trial when the state offered to introduce the handwriting samples in evidence. If a decision on such questions had been favorable to appellant, the samples could not have been used in evidence to prove the state’s case. Appellant would have been none the worse off for not having had the questions decided prior to trial. There was no prejudice here.
*355In construing the guarantee to the right to counsel in the federal constitution,6 which is virtually identical to the wording of the Alaska constitution,7 the United States Supreme Court has held that the taking of handwriting samples was not a critical stage of the criminal proceedings entitling the accused to the assistance of counsel. Noting that there was a minimal risk that the absence of counsel in this situation might derogate from the accused’s right to a fair trial, the Supreme Court said:
If, for some reason, an unrepresentative exemplar is taken, this can be brought out and corrected through the adversary process at trial since the accused can make an unlimited number of additional exemplars for anlaysis and comparison by government and defense handwriting experts. Thus, “the accused has the opportunity for a meaningful confrontation of the [State’s] case at trial through the ordinary processes of cross-examination of the [State’s] expert [handwriting] witnesses and the presentation of the evidence of his own [handwriting] experts.” United States v. Wade, 388 U.S. [218] at 227-228, 87 S.Ct. [1926] at 1932-1933 [18 L.Ed.2d 1149, 1158].8
I believe the Supreme Court’s reasoning is sound, that we should similarly construe the Alaska constitution’s guarantee of the right to counsel, and that we should hold there has been no denial of such constitutional right in this case.
There is one further- point I feel constrained to comment on. That is the court’s statement that it was influenced in reaching the conclusion that appellant was deprived of his right to the assistance of counsel by “the dubious ethical character of the government’s action in dealing directly with the accused after counsel had been appointed.” The court appears to hold that under the Canons of Professional Ethics, No. 9, which provides that a lawyer should not in any way communicate upon the subject of controversy with a party represented by counsel, neither the prosecuting attorney nor the police in a criminal case may at any time communicate directly with the accused but must deal solely with his counsel.
That point was not briefed in this case. The court’s discussion does not indicate that the question was given the thorough consideration it deserves. The implications are of concern to me. If there may be no communication at all between the accused and law enforcement authorities in the absence of counsel for the accused, .the question arises as to whether this may not result in placing an undue burden on law enforcement authorities. It is well for the court to be concerned about protecting the rights of the individual in a criminal case. Indeed, that is its obligation. But the court should also be aware of the rights of society to be protected against the depredations resulting from criminal behavior. I am fearful that the court is being over scrupulous in its concern for what it conceives to be individual rights to the point where the rights of the people to effective law enforcement may suffer. At the least, I believe the court is unwise to lay down such a broad rule relating to communications between law enforcement authorities and an accused in a criminal case, in the absence of a more thorough study of the question.
I would affirm the judgment of conviction.
. Alaska Const, art. I, § 11.
. See Nichols v. State, 425 P.2d 247, 254 (Alaska 1967).
. Canons of Prof. Ethics, No. 19, provides:
Appearance of Lawyer as Witness for Sis Client.
When a lawyer is a witness for his client, except as to merely formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the case to other counsel. Except when essential to the ends of justice, a lawyer should avoid testifying in Court in behalf of his client.
. Crim.R. 26(b) (3) provides:
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 fact, except to refuse to testify.
.AS 09.50.010 provides in part:
The following acts or omissions in respect to a court of justice or court proceedings are contempts of the authority of the court:
* ⅝ * * *
(5) disobedience of a lawful judgment, order, or process of the- court.
. The sixth amendment to the federal constitution provides in part:
In all criminal prosecutions, the accused shall enjoy the right * ⅜ * to have the Assistance of Counsel for his defence.
. Section 11 of article I, Alaska constitution provides in part:
In all criminal prosecutions, the accused ⅜ * * is entitled * * * to have the assistance of counsel for his defense.
.Gilbert v. California, 388 U.S. 263, 267, 87 S.Ct. 1951, 1953, 18 L.Ed.2d 1178, 1183 (1967).