(dissenting) — I respectfully dissent. The majority affirms the defendant’s convictions for two counts of aggravated murder and upholds the trial court’s discovery sanctions excluding the defendant’s evidence regarding his claim of diminished capacity. In doing so, the majority overlooks the ambiguity of this court’s interlocutory order and the vague contradictory language in State v. Hutchinson, 111 Wn.2d 872, 766 P.2d 447 (1989) (Hutchinson I), which the defendant reasonably understood to mean that he could refuse to answer questions by the state’s expert if he believed the answers might incriminate him. Moreover, the majority holds that a criminal defendant who does not comply with discovery requests may be sanctioned by exclusion or suppression of evidence. Although the majority recognizes that such a holding contradicts the practice that Washington courts have traditionally followed, it nevertheless justifies this departure by speculating that no other meaningful remedy was available. I dissent because neither the circumstances nor precedent warrant exclusion of evidence.
The defendant did not violate this court’s order because the language in both our first order and Hutchinson I support the defendant’s reading. Indeed, the majority concedes that both parties were confused by the September 26, 1988 order, as to how the defendant’s right against self-incrimination would be protected during a compelled examination. The order stated: “[N]either the interposing of a diminished capacity defense by Mr. Hutchinson nor his submission to this examination shall be deemed to waive his constitutional right against self-incrimination[.]” Hutchinson I, 111 Wn.2d at 874. In an effort to clarify that order, this court issued Hutchinson I. Unfortunately, Hutchinson I still contained language that defendant was *890reasonably entitled to believe meant that he did not have to submit to the State’s expert examination: “The defendant, upon such an examination, may refuse to answer any question if he believes his answer might tend to incriminate him or lead to evidence of an incriminating nature.” Id. at 884 (citing RCW 10.77.020(4)).1 As a result, the defendant genuinely and reasonably believed he was not required to answer questions by the State’s expert2 and even the trial court justifiably expressed frustration in interpreting Hutchinson I. See Clerk’s Papers at 1297-98; Verbatim Report of Proceedings (RP) at 16-21 (Jan. 11, 1989). To make matters worse, just two days prior to our opinion in Hutchinson I, the State’s expert exacerbated the confusion at the outset of the defendant’s examination, stating “whatever you say does not have Fifth Amendment privileges.” RP at 2 (Jan. 11, 1989). This warning by the State’s expert gave defendant further reasonable cause for concern that his answers during the compelled examination might incriminate him. In light of such confusion and the ambiguity in Hutchinson I, this court should hold that defendant did not violate this court’s order.
Even if the defendant violated the order as “clarified” in Hutchinson I, exclusion or suppression of evidence is not a valid sanction for such a violation of discovery rules.3 The majority clearly recognizes that Washington courts have consistently applied CrR 4.7(h)(7)(i) as not encompassing exclusion or suppression of evidence since its inception in *891State v. Glasper, 12 Wn. App. 36, 38, 527 P.2d 1127 (1974). Since then, as the majority points out, we have uncompromisingly reiterated this rule in several cases. See State v. Thacker, 94 Wn.2d 276, 280, 616 P.2d 655 (1980) (reversing conviction and holding that suppression of evidence is not one of the sanctions available for failure to comply with the discovery rules); State v. Laureano, 101 Wn.2d 745, 762, 682 P.2d 889 (1984) (“Failure to comply with CrR 4.7 may result in an order compelling discovery, a continuance, or dismissal of the action. CrR 4.7(h)(7)(i). Suppression of evidence is not one of the sanctions available for failure to comply with the discovery mies.”); State v. Terrovona, 105 Wn.2d 632, 651, 716 P.2d 295 (1986) (“[Suppression of evidence is not one of the sanctions available.”); State v. Ray, 116 Wn.2d 531, 538, 806 P.2d 1220 (1991) (“Suppression of evidence is not one of the sanctions available for failure to comply with discovery mies and the trial court, therefore, erred when it suppressed [defense] testimony because the court believed Ray violated CrR 4.7(b).”) (citing State v. Thacker, 94 Wn.2d 276, 280, 616 P.2d 655 (1980)).
Washington law has unequivocally held that sanctions for noncompliance with discovery rules do not include exclusion of evidence. Nevertheless, the majority relies on a United States Supreme Court ruling in Taylor v. Rlinois, 484 U.S. 400, 414-15, 108 S. Ct. 646, 98 L. Ed. 2d 798 (1988), in which exclusion of evidence as a discovery sanction was permitted where the defendant did not disclose or identify key witnesses. In Taylor, the high court noted where such an omission was willful and motivated by a desire to obtain a tactical advantage that would minimize the effectiveness of cross-examination and the ability to adduce rebuttal evidence, exclusion of defense witness’ testimony was proper. Taylor, 484 U.S. at 415. Unlike Taylor, however, in this case defendant’s alleged noncompliance with discovery mies was not willful nor motivated by tactical advantage. Rather, defendant’s nonparticipation in the State’s expert examination was due to the confusing language in our interlocutory order and opinion in Hutchinson I. Moreover, even after Taylor was decided, this court *892has reaffirmed Washington’s rule that suppression of evidence is not a valid discovery sanction. Ray, 116 Wn.2d at 538. There is no compelling reason to change course now.
Although suppression of evidence is not within the scope of discovery sanctions, a trial court may consider other remedies, such as a continuance, contempt, a fine, or dismissal for a party’s noncompliance with discovery rules. Here, however, the trial court did not consider the imposition of other less restrictive sanctions, but rather in an attempt to “get the attention of the Supreme Court” granted the State’s motion to exclude defense experts. RP at 37-38, 49, 69-72 (Jan. 11, 1989). Even after Hutchinson I and the defendant’s subsequent motions to reconsider exclusion of defense experts, the trial court failed to consider imposing other less onerous sanctions for the defendant’s nonparticipation in the State’s expert examination.
As alluded to above, there is considerable doubt about whether the trial court intended exclusion to be the final result, or to serve only as a vehicle to bring to this court’s attention the problem engendered by this court’s order and subsequent opinion in Hutchinson I. The majority believes that the trial court’s sanction was proper because no other remedy would have been meaningful. This reasoning is not convincing in light of the totality of circumstances. Because the trial court did not even consider imposing any other sanction, the effect of other less restrictive remedies is unknown.4
The majority, overruling precedent from this court, broadens the discretionary power of the trial court under CrR 4.7(h)(7)(i) by holding that exclusion of evidence could be a possible sanction a trial court may “deem just under *893the circumstances.” CrR 4.7(h)(7)(i). I respectfully submit that suppression under the circumstances of this case is not just. Here, the impact of defendant’s nonparticipation in the State’s expert examination pales in comparison to the impact on defendant, who was effectively prevented from asserting his only defense, diminished capacity.
The Court of Appeals pointed out that although the sanction rule preempts evidentiary exclusion, other rules compensate by allowing relatively intrusive discovery. State v. Hutchinson (Hutchinson II), 85 Wn. App. 726, 738, 938 P.2d 336 (1997) (citing State v. Gonzalez, 110 Wn.2d 738, 745, 757 P.2d 925 (1988)). In weighing the risk of surprise to the State and the availability of defendant’s diminished capacity evidence, the Court of Appeals correctly concluded that Washington rules afford the prosecution sufficient opportunity to rebut a defendant’s diminished capacity claim,5 even if the defendant violates the court’s order to participate in a mental health examination. Hutchinson II, 85 Wn. App. at 738. Thus, defendant’s nonparticipation in the State’s expert examination did not warrant exclusion of evidence given alternative sanctions, other means to compel discovery of defendant’s diminished capacity claim, and the severe impact of exclusion.
Given the ambiguity and confusion surrounding this court’s directive and Hutchinson I, the well-established case law precluding exclusion and suppression of evidence as a sanction for discovery violations, and the fact that exclusion of the evidence in this case was tantamount to depriving the defendant of his only defense, this court should conclude that the trial court improperly excluded *894the defendant’s evidence regarding his claim of diminished capacity.
Johnson and Sanders, JJ, concur with Madsen, J.
Reconsideration denied September 16, 1998.
In State v. Lopez, 74 Wn. App. 456, 459, 874 P.2d 179 (1994), the Court of Appeals specifically cited this language from Hutchinson I to determine whether a psychiatric report could be used to impeach a defendant.
That defendant genuinely believed he was not required to answer questions by the State’s expert is further supported by the fact that even the Supreme Court Commissioner suggested to defense counsel to seek reconsideration of the trial court’s orders regarding mental examination in light of Hutchinson I. Clerk’s Fapers at 1297; Verbatim Report of Proceedings at 16-19 (Jan. 11, 1989).
CrR 4.7(h)(7)(i) plainly states: “if at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with an applicable discovery rule or an order issued pursuant thereto, the court may order such party to permit the discovery of material and information not previously disclosed, grant a continuance, dismiss the action or enter such other order as it deems just under the circumstances.”
Cf. In re Firestorm 1991, 129 Wn.2d 130, 916 P.2d 411 (1996) (Disqualification of counsel as a sanction for violating CR 26(b)(5) was too extreme and disproportionate to the rule violation; the trial court should have considered less severe sanctions.). “The record in this case does not allow us to determine what other sanctions for the violation in this case would comport with Fisons. ‘What the sanctions should be and against whom they should be imposed is a question that cannot be fairly answered without further factual inquiry, and that is the trial court’s function.’ ” Id. at 145 (quoting Washington State Physicians Ins. Exch. & Ass’n v. Fisons Corp., 122 Wn.2d 299, 355, 858 P.2d 1054 (1993)).
CrR 4.6(a) requires witnesses to discuss the case with both sides. Alternately, the court can order witnesses deposed. CrR 4.6(a); see also State v. Glasper, 12 Wn. App. 36, 39, 527 P.2d 1127 (1974). The court can compel discovery of testifying, consulting, and failed experts, including their reports, notes, and test data. State v. Pawlyk, 115 Wn.2d 457, 467, 800 P.2d 338 (1990); State v. Hamlet, 83 Wn. App. 350, 358, 921 P.2d 560 (1996). The State’s expert may relate the defendant’s refusal to be examined when explaining the bases of the expert’s opinion. State v. Huson, 73 Wn.2d 660, 667, 440 P.2d 192 (1968); Louisiana v. Widenhouse, 582 So. 2d 1374, 1384 (La. Ct. App. 1991).