In Brown v. State, 372 P.2d 785 (Alaska 1962) the supreme court held that a defendant was prejudiced when he was excluded from a hearing to determine whether his wife would waive her spousal immunity and testify at his trial. Brown was charged with assault and illegal possession of a concealable weapon. Brown's wife, Stella, was purportedly a witness to the alleged crimes, and Brown's attorney was trying to persuade Stella to testify on Brown's behalf. At trial, the defense attorney asked the court to hold Stella as a material witness or make her post bail to guarantee her appearance. The trial judge perceived, however, that Stella had a spousal privilege not to testify at her husband's trial, and it would therefore be improper to hold Stella as a material witness unless she was willing to relinquish that spousal privilege. The judge therefore held a hearing to determine whether Stella was willing to testify. Both attorneys attended this hearing, but Brown did not. At the hearing, Stella stated that she would claim her spousal privilege and would not testify. Consequently, Brown withdrew his motion to hold Stella as a material witness. On appeal, Brown claimed that holding this hearing in his absence violated his rights under Criminal Rule 38. Brown asserted that he was prejudiced because, if he had been present at the hearing, he would have had a calming influence on his wife and she might have consented to testify on his behalf. The supreme court agreed that Brown's presence at the hearing could have altered his wife's decision. The court concluded: We believe that under the circumstances of this case, Brown's presence was required by Rule 38 and that his right to be present was as vital to his defense as his specific constitutional right to be confronted with the witnesses against him. Id. at 789. In Brown, the question was not whether Brown's wife would honor her trial subpoena or whether the court should take steps to insure that the subpoena would be honored. Rather, the question was whether Stella Brown could be ordered to testify at all. Mrs. Brown held a privilege to refuse to testify at her husband's trial, and the question was whether she would waive that privilege and consent to testify on Brown's behalf. The supreme court reversed Brown's conviction because the court was convinced that Brown's presence could have made a difference in his wife's decision to waive or assert the privilege.