BONEY, Justice.
Appellant brought this appeal after being convicted of the crimes of forgery and passing a forged check.
Appellant claims on appeal that the court erred in admitting into evidence certain handwriting samples obtained from him while he was in jail awaiting trial. He maintains that this evidence was obtained in violation of his constitutional privilege against self-incrimination and in violation of his constitutional right to counsel. He also contends that the samples were inadmissible because they were obtained from him by coercion.
The appellant was indicted on November 8, 1967, and was arraigned on November 13, 1967. At this arraignment, Fairbanks attorney Barry W. Jackson was named as his court-appointed counsel. While the appellant remained in jail in pretrial confinement, he was interviewed on December 14, 1967, by U.S. Secret Service Agent Dobish and Fairbanks City Detective Lieutenant Gibson, in an effort to secure handwriting samples. Dobish and Gibson conducted the interview without the presence or consent of appellant’s appointed defense counsel. At this interview, it appears that the handwriting samples were taken even though appellant had told Gibson that his attorney should be contacted. Gibson testified that Dobish told appellant the- samples would be sent to a handwriting expert for comparison tests with signatures on a suspect check in a federal case. Gibson testified that he told appellant he did not have to give a handwriting sample; but if he refused, a court order could be obtained; and if appellant did not comply with the order requiring him to give samples, “there could be a contempt of court proceedings then.” Gibson denied telling appellant that handwriting samples would not be used in court.
Appellant testified that it was Dobish who requested the handwriting samples, that he did not want to give them, and that he did give them only after being told that a court order would be obtained and that he would be prosecuted for contempt of court. Appellant claimed that Dobish advised him that the samples would not be used in court. Counsel for appellant was contacted by Gibson and was requested to consent to the taking of handwriting samples. ■ Counsel advised Gibson that he did not consent to the taking of the handwriting samples and would check the law on the question. Nevertheless, the handwriting samples were taken from appellant.
Later, the State of Alaska made a motion under Criminal Rule 26(b) (3) to require the appellant to give further handwriting samples.1 This motion was denied. Later, at the trial of the case, the judge who presided at the trial admitted the samples obtained by Dobish into evidence.
We conclude that the admission of this evidence by the trial court was error. Since this evidence and the expert testimony concerning it constituted a great portion of the state’s case, we cannot say that this [342] evidence did not appreciably affect the jury’s determination of the appellant’s guilt.2 It should he noted that there was no direct evidence that Roberts was the person who cashed the check in Count I of the indictment. Therefore, the appellant’s conviction must be set aside and this case reversed and remanded for a new trial.
In support of our conclusion, we hold that the appellant’s constitutional right to counsel under the Alaska Constitution was violated.3 We are not bound in expounding the Alaska Constitution’s Declaration of Rights by the decisions of the United States Supreme Court, past or future, which expound identical or closely similar provisions of the United States Constitution. We believe that the holding of this court in the case, Knudsen v. City of Anchorage, 358 P.2d 375, 379 (Alaska 1960) which is quoted as follows is erroneous:
We hold 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.
To the extent that the above holding in Knudsen is inconsistent with this opinion, it is overruled. Such a holding in Knudsen is inconsistent with the constitutional grant of judicial power to this court. To look only to the United States Supreme Court for constitutional guidance would be an abdication by this court of its constitutional responsibilities. This court has not always followed the generalized holding in Knudsen.4 Other high state courts in interpreting their constitution have anticipated or applied standards different from those minimally required by the United States Supreme Court.5
The state cites Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) as authority for the proposition that a criminal defendant can be required to give handwriting exemplars without violating his privilege against self-incrimination and his right to counsel as protected by the fifth and sixth amendments. As previously stated, we are not limited by decisions of the United States Supreme Court or the United States Constitution when we ex[343] pound our state constitution; the Alaska Constitution may have broader safeguards than the minimum federal standards.6 Gilbert held by a vote of five to four that denial of counsel at the taking of handwriting exemplars after arrest but before indictment or appointment of counsel was not a deprivation of the right to counsel because this was not a “critical stage.” The four dissenting justices stated there was a deprivation of the right to counsel because this was a “critical stage.” The dissenting justices noted that counsel could prevent unfair or inaccurate exemplars or confessions under the guise of exemplars, from being taken, and that exemplars could have great weight at trial. Four of the nine justices of the Supreme Court of the United States found unpersuasive the majority argument that absence of counsel most probably would not derogate from defendant’s right to a fair trial.
We find that article I, § 11 of the Alaska Constitution requires counsel in the circumstances of the present case.
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BONEY, Justice.
Appellant brought this appeal after being convicted of the crimes of forgery and passing a forged check.
Appellant claims on appeal that the court erred in admitting into evidence certain handwriting samples obtained from him while he was in jail awaiting trial. He maintains that this evidence was obtained in violation of his constitutional privilege against self-incrimination and in violation of his constitutional right to counsel. He also contends that the samples were inadmissible because they were obtained from him by coercion.
The appellant was indicted on November 8, 1967, and was arraigned on November 13, 1967. At this arraignment, Fairbanks attorney Barry W. Jackson was named as his court-appointed counsel. While the appellant remained in jail in pretrial confinement, he was interviewed on December 14, 1967, by U.S. Secret Service Agent Dobish and Fairbanks City Detective Lieutenant Gibson, in an effort to secure handwriting samples. Dobish and Gibson conducted the interview without the presence or consent of appellant’s appointed defense counsel. At this interview, it appears that the handwriting samples were taken even though appellant had told Gibson that his attorney should be contacted. Gibson testified that Dobish told appellant the- samples would be sent to a handwriting expert for comparison tests with signatures on a suspect check in a federal case. Gibson testified that he told appellant he did not have to give a handwriting sample; but if he refused, a court order could be obtained; and if appellant did not comply with the order requiring him to give samples, “there could be a contempt of court proceedings then.” Gibson denied telling appellant that handwriting samples would not be used in court.
Appellant testified that it was Dobish who requested the handwriting samples, that he did not want to give them, and that he did give them only after being told that a court order would be obtained and that he would be prosecuted for contempt of court. Appellant claimed that Dobish advised him that the samples would not be used in court. Counsel for appellant was contacted by Gibson and was requested to consent to the taking of handwriting samples. ■ Counsel advised Gibson that he did not consent to the taking of the handwriting samples and would check the law on the question. Nevertheless, the handwriting samples were taken from appellant.
Later, the State of Alaska made a motion under Criminal Rule 26(b) (3) to require the appellant to give further handwriting samples.1 This motion was denied. Later, at the trial of the case, the judge who presided at the trial admitted the samples obtained by Dobish into evidence.
We conclude that the admission of this evidence by the trial court was error. Since this evidence and the expert testimony concerning it constituted a great portion of the state’s case, we cannot say that this [342] evidence did not appreciably affect the jury’s determination of the appellant’s guilt.2 It should he noted that there was no direct evidence that Roberts was the person who cashed the check in Count I of the indictment. Therefore, the appellant’s conviction must be set aside and this case reversed and remanded for a new trial.
In support of our conclusion, we hold that the appellant’s constitutional right to counsel under the Alaska Constitution was violated.3 We are not bound in expounding the Alaska Constitution’s Declaration of Rights by the decisions of the United States Supreme Court, past or future, which expound identical or closely similar provisions of the United States Constitution. We believe that the holding of this court in the case, Knudsen v. City of Anchorage, 358 P.2d 375, 379 (Alaska 1960) which is quoted as follows is erroneous:
We hold 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.
To the extent that the above holding in Knudsen is inconsistent with this opinion, it is overruled. Such a holding in Knudsen is inconsistent with the constitutional grant of judicial power to this court. To look only to the United States Supreme Court for constitutional guidance would be an abdication by this court of its constitutional responsibilities. This court has not always followed the generalized holding in Knudsen.4 Other high state courts in interpreting their constitution have anticipated or applied standards different from those minimally required by the United States Supreme Court.5
The state cites Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178 (1967) as authority for the proposition that a criminal defendant can be required to give handwriting exemplars without violating his privilege against self-incrimination and his right to counsel as protected by the fifth and sixth amendments. As previously stated, we are not limited by decisions of the United States Supreme Court or the United States Constitution when we ex[343] pound our state constitution; the Alaska Constitution may have broader safeguards than the minimum federal standards.6 Gilbert held by a vote of five to four that denial of counsel at the taking of handwriting exemplars after arrest but before indictment or appointment of counsel was not a deprivation of the right to counsel because this was not a “critical stage.” The four dissenting justices stated there was a deprivation of the right to counsel because this was a “critical stage.” The dissenting justices noted that counsel could prevent unfair or inaccurate exemplars or confessions under the guise of exemplars, from being taken, and that exemplars could have great weight at trial. Four of the nine justices of the Supreme Court of the United States found unpersuasive the majority argument that absence of counsel most probably would not derogate from defendant’s right to a fair trial.
We find that article I, § 11 of the Alaska Constitution requires counsel in the circumstances of the present case.
It is important to note that Gilbert is distinguishable on its facts. In Gilbert,7 the exemplars were taken before indictment and appointment of counsel. In this case they were taken after indictment and appointment of counsel. Therefore, inquiry was more clearly focused on the accused. No material delay would have occurred because of any need to appoint or select counsel.8 Gilbert held as a logical prerequisite to its right-to-counsel holding that the accused had no right to refuse to grant handwriting exemplars.9 Had this issue not been resolved, the taking of exemplars would have been a “critical stage” because an attorney might have prevented the taking of exemplars or delayed them until adequate judicial supervision could be obtained. We do not decide whether compulsion of handwriting exemplars is barred by article I, § 9 of the Alaska Constitution 10 or, if not, whether Criminal Rule 26(b) (3) by negative implication confers a privilege to refuse to grant them except when ordered to do so by a court. We are not now prepared to interpret conclusively these provisions. We would have to hold in the negative on both propositions in order to follow the holding of Gilbert. The legal context of this case is materially different from Gilbert.
The prejudice to appellant from the violation of his right to counsel at this critical stage of the proceedings may be summarized as follows:
(1) his attorney might have noticed improprieties of which this court is not aware, because the accused, a layman probably frightened by the investigation, may have failed to perceive some improprieties ;11
(2) had his attorney been present, his 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;
(3) Roberts’ attorney, had he been present, could have bolstered Roberts’ legal understanding so that he could make an [344] intelligent decision about whether to yield the exemplars at that stage;
(4) 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.
Roberts did not effectively waive his right to counsel. He requested that his lawyer be contacted and yielded the exemplars only when threatened with contempt of court proceedings. We find no evidence of “an intentional relinquishment or abandonment of a known right or privilege.” 12
For these reasons, we have concluded that Roberts was denied his right to counsel under article I, § 11 of the Alaska Constitution. We do not decide whether handwriting exemplars are within the scope of Alaska Constitution article I, § 9, or whether Criminal Rule 26(b) (3) confers a privilege to refuse to grant them except when ordered to do so by a court.13 Our decision today clarifies the rights of a criminal defendant to counsel at this critical stage of the proceedings against him.14
We are influenced in reaching this conclusion by the dubious ethical character of the government’s action in dealing directly with the accused after counsel had been appointed. Any questions of coercion and impropriety could easily have been avoided by obtaining counsel’s consent to taking the exemplars. Ordinarily attorneys should not communicate or negotiate with parties represented by counsel.15 They may not do [345] through intermediaries what they may not do directly. The district attorney should comply with the ethical standards generally applicable to attorneys. 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 behavior.
Although prosecutors and police officers have many functions which are dissimilar, there are also instances where their activities touch and merge in the prosecution of criminal cases. When they are acting in concourse there is no reason why the prosecution should be able to appropriate the fruits of police action which breaches a substantial right of a person charged with a crime, even though the prosecution did not directly participate in that action. After charges have been filed and counsel has been appointed or retained, the case is no longer only a police matter.
Because of the possibility of retrial, it is necessary for us to discuss other issues raised by appellant on this appeal.
Two weeks prior to the commencement of the trial, the prosecuting attorney filed an affidavit which stated:
That I believe that the State cannot obtain a fair and impartial trial in the above-entitled cause if tried by the Honorable Judge Warren William Taylor.
That this, affidavit is made in good faith .and not for the purpose of delay.
The affidavit was filed pursuant to AS 22.20.022 which provides in part:
(a) If a party or his attorney in a superior court action, civil or criminal, files an affidavit alleging under oath that he believes that he cannot obtain a fair and impartial trial, the presiding judge shall at once, and without requiring proof, .assign the action to another judge of that district, or if there is none, the chief justice of the supreme court shall assign a judge for the hearing or trial of the action. The affidavit shall contain a statement that it is made in good faith and not for the purpose of delay.
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(c) The affidavit shall be filed within five days after the case is at issue upon a question of fact, or within five days after the issue is assigned to a judge, whichever event occurs later, unless good cause is shown for the failure to file it within that time.
Appellant contends that Judge Taylor was not properly disqualified because the affidavit of disqualification was not filed within five cjays after the case had been assigned to Judge Taylor. Appellant claims prejudice by reason of the fact that Judge Taylor had previously denied the state’s motion for an order requiring appellant to furnish handwriting samples — appellant’s argument being that if Judge Taylor had presided at the trial of the case he probably would have refused to permit the admission into evidence of certain handwriting samples that had been obtained from appellant without court order. These samples were admitted by Judge Hepp, who presided at the trial, and appellant contends they contributed in great measure to the jury’s guilty verdict. On this basis appellant asks us to reverse the judgment of conviction and order a new trial before Judge Taylor.
The essence of appellant’s argument is that when a party files a disqualification affidavit under AS 22.20.022, the opposite party has the right to challenge the effectiveness of the disqualification. The statute affords the latter party no such right. The only right created and defined by statute is to have a fair trial before [346] an unbiased and impartial judge.16 A party-may avail himself of that right by timely filing an affidavit stating that he believes he cannot obtain a fair and impartial trial before a particular judge. The statute does not in any manner purport to give the right to the other party, who does not claim that the assigned judge is biased or prejudiced, to have the case tried by that judge.
It may be contended that if a proper affidavit is not timely filed, then the judge in question is not disqualified under the statute. That is true. And' it may be that such a judge may mistakenly believe that he is disqualified when he is not, and for that reason the presiding judge will decide to assign the action for trial before another judge. But a party to the litigation has no right to obtain review of such a decision and to require that the case be heard by the judge whose attempted disqualification was not effective. A party has a right to a trial before an unbiased and impartial judge — not a particular unbiased and impartial judge. For this reason we shall not review and pass upon appellant’s contentions that the affidavit of disqualification was not timely filed and that AS 22.20.022 is invalid.17 We shall pass upon such contentions only at the instance of a party who has sought, and has not obtained, the disqualification of a judge, because then the right to a trial before an unbiased and impartial judge would be directly involved.
In a multi-judge court the assigning of cases to judges for hearing or trial is an administrative matter committed to the discretion of the presiding judge. Ordinarily it is not our function as an appellate court to interfere with the exercise of that discretion. But in an instance where the administrative method of assigning cases affects the effective administration of justice, we are constrained to comment upon this subject.
There is nothing in the record to show when this case was assigned to Judge Taylor for trial, or indeed if such an assignment had ever been made. As appellant points out in his brief, the practice in the Fourth Judicial District is to not make an assignment until the date of trial or hearing. If this is true, then a party who wishes to disqualify a judge under AS 22.20.022 is unable to file his affidavit until the date of the trial or hearing because until then he has no way of knowing which judge will hear the case. The statute requires that at the latest the affidavit of disqualification be filed within five days after an issue has been assigned to a judge. The obvious purpose of this five day requirement is to avoid a waste of judicial time which would result if an affidavit of disqualification were not filed until the day of the trial, because this would mean that the case would have to be continued until another judge could be assigned, and the disqualified judge would probably not be ready at that time to start the trial of another action. A method should be devised and utilized to make assignments of cases to judges sufficiently in advance of trial or hearing, with notice of the assignments being given to the parties, so that the parties can be afforded their rights under AS 22.20.022 without interfering with scheduled hearing or trial dates.
The checks which appellant was charged with having forged were made payable to the order of John Maykut by the McKinley Painting and Decorating Company and were drawn on the Alaska State Bank of Fairbanks. The indictment charged appellant with forging the name of John May-kut as the endorsement to the checks “with intent to injure and defraud the Alaska State Bank of Fairbanks, the McKinley Painting and Decorating Company and [347] John Maykut.” At the trial the court instructed the jury .as to the necessity of finding specific intent to injure or defraud as required by the forgery statute,18 by stating that an essential element of the crime of forgery was the “intent to defraud another”, that an intent to defraud is an “intent to deceive another person”, and that an intent to defraud is shown where the evidence proves beyond a reasonable doubt that a defendant entertained a purpose,of such a nature that had it been carried out “someone would or might have been defrauded by his conduct.”
Appellant contended at the trial and contends here that the jury ought to have been told that in order to convict, it would have to find that appellant had the specific intent to defraud, not just “someone” or “another”, but the specific persons named in the indictment.
AS 11.70.010 provides:
Whenever, by a provision of this title, an intent to defraud is necessary to constitute a crime, it is sufficient if an intent appears to defraud any person.
What this statute means, as applied to this case, is that it was unnecessary to specify in the indictment who was defrauded by appellant’s actions. However the fact that it was unnecessary to allege in the indictment who was defrauded, does not necessarily relieve the state from the burden of proving the indictment as it was written.
Because of our disposition of the issues above, this case will require a new trial. It is not necessary that we decide whether the variance in this case between the indictment and the .instructions constitutes reversible error. For purposes of retrial, we wish to note that it appears to be the prevailing opinion that immaterial, unnecessary allegations in an indictment, which might be omitted without affecting the validity or charge of the indictment, need not be proved and may be properly considered surplusage.19
According to one viewpoint, an allegation in an indictment which describes a material element of the offense in unnecessary detail must be proved and cannot be rejected as mere surplusage.20 The operation of this rule, which dates back to a time when greater emphasis was placed upon formal rules of pleading, does not seem to depend upon a showing that the accused was misled by the indictment nor upon a showing that the accused’s right to plead former [348] jeopardy in the event of a subsequent prosecution would be infringed.21
We believe that an unnecessarily detailed description of a material allegation in an indictment should be treated as analogous to an “imperfection in matter of form” of the indictment within the meaning of Criminal Rule 7(c).22 The failure to prove (or the failure to submit instructions which require the jury to find) the existence of facts which correspond to an unnecessary description of a necessary element of an indictment will constitute reversible error only if the substantial rights of the accused are prejudiced.23
An example of how an unnecessary description in an indictment or information can lead to prejudicial error occurred in State v. Sudrala, 79 S.D. 587, 116 N.W.2d 243 (1962). In that case the information charged a liquor store owner with selling liquor to a minor. Although it was unnecessary to do so, the information named the exact brand of whiskey which was sold to the minor. In establishing a defense at trial, practically the only evidence offered by the defendant was a painstaking explanation of his running daily inventory, involving numerous and detailed exhibits, which if true, established that the defendant’s store did not sell the named brand of whiskey to anyone on the day in question. The trial court then submitted the case to the jury on instructions which required the jury to find only that defendant had sold a bottle of liquor rather than the brand named in the information. On appeal it was held that the variance between the information and the instructions was reversible error, because the accused had been misled in the preparation of his defense. The court stated:
The challenged instruction, in effect, pulled the rug from under a defense which he [the defendant] was induced to present and rely on by the claim of the state made in the information.
116 N.W.2d at 244.
Upon retrial should this issue be raised again, the trial court is instructed to decide this issue in light of the rule we adopt today.
Appellant’s final point is that the trial court erred in not granting appellant’s motion for a judgment of acquittal as to Count I of the indictment. This count charged .appellant with having passed a forged check made by McKinley Painting and Decorating Company with John Maykut as payee.
The check was dated June 6, 1967, and was in the amount of $281.17. Lloyd Adams, a taxi driver, testified that in the early morning of June 19, 1967, he picked up appellant and drove him to the International Hotel Bar. Adams said that he and appellant went into the bar and he watched the bartender, Merrill Wier, cash a check for appellant. Adams did not identify the check, except to say that he thought it was in the amount of either $225 or $250:
[349] The fact that appellant cashed a check, otherwise not identified, is not alone sufficient evidence to establish that he cashed the check upon which Count I of the indictment was based. But there was other evidence, even excluding the testimony concerning the handwriting samples taken from appellant, from which it could be inferred that appellant cashed and passed that particular check and that the endorsement of the payee, John Maykut, had been forged by appellant. Jack Oliver, a fingerprint examiner for the FBI, testified that he examined the check in question and found appellant’s fingerprints on it. Lyn-dal Schaneyfelt, a document examiner for the FBI, testified that the endorsement on the back of the check was not written by John Maykut. The check bore the handwritten endorsement “John Maykut”, and below that were stamped the words, “For deposit only — International Hotel & Bar.” Detective Gustafson of the Fairbanks Police Department testified that he received the check from Merrill Wier, bartender and manager of the International Hotel, on June 27, 1967.
This was evidence that the check in question had been cashed or passed at the International Hotel Bar. Since the check bore only the forged endorsement of the payee, John Maykut, and since the check bore the fingerprints of appellant, who had been seen passing a check at the International Hotel Bar shortly before the check in question was turned over to the police, it is a fair inference that the check was cashed at the International Hotel Bar by appellant some time in June 1967. At least fair minded men in the exercise of reasonable judgment could differ on the question of whether appellant’s guilt in having passed this forged check had been established beyond a reasonable doubt, and therefore this issue was properly submitted to the jury and appellant’s motion for a judgment of acquittal was properly denied.24
The judgment is reversed.