dissenting.
For the reasons stated in our former opinion, State v. Farber, 56 Or App 351, 358-65, 642 P2d 668 (1982), I dissent from that portion of the majority opinion that holds that defendant’s constitutional right to confront and cross-examine the witness against him was not violated. I would hold that the trial court committed reversible error when it permitted Freer and Fouts to testify about the hearsay statements of Whitney.
The majority states that the co-conspirator exception to the rule against hearsay is “firmly established.” It does so in order to bring ORS 41.900(6) within the language found in Ohio v. Roberts, 448 US 56, 100 S Ct 2531, 65 L Ed 2d 597 (1980), that reliability can be inferred without more in a case where the evidence falls within a “firmly rooted” hearsay exception. 448 US at 66. I take that dictum *739to mean hearsay exceptions that are firmly rooted in reliability. Contrary to the usual rationale that hearsay exceptions are rooted in reliability, in Oregon the co-conspirator exception is rooted in a theory of mutual agency or partnership. State v. Yee Guck, 99 Or 231, 241-42, 195 P 363 (1921); State v. Ryan, 47 Or 338, 82 P 703 (1905); State v. Williams, 38 Or App 327, 590 P2d 259 (1979); State v. Davis, 19 Or App 446, 528 P2d 117 (1974).
According to the state, Whitney was defendant’s accomplice to murder. ORS 17.250(4) provides that the testimony of an accomplice ought to be viewed with distrust. Arguably, because under Oregon law, accomplice testimony is suspect and because the oral admissions of a party are to be viewed with caution, nothing short of confrontation (which includes sworn testimony subject to cross-examination and the jury’s observation of the witness) with Whitney could satisfy Article I, Section 11 of our state constitution. See State v. Smyth, 286 Or 293, 300 n 8, 593 P2d 1166 (1979).