(concurring specially).
I concur with the result reached by the majority in this case only because the excluded evidence was irrelevant. I cannot agree, however, that under the facts of this case the evidence should have been excluded under Rule 9.03, subd. 8, Rules of Criminal Procedure. Taking into account the factors which should guide the exercise of the trial judge’s discretion in imposing sanctions for violations of the discovery rules, I am persuaded that the sanction of exclusion of the evidence was unwarranted.
The first factor to be considered is the reason why disclosure is not made. Although the majority recognizes that the failure to disclose may not have been motivated by bad faith, the opinion nevertheless states that defense counsel completely dis*376regarded the obligation of discovery. The record does not support this conclusion. Defense counsel did provide a list of potential witnesses in response to the prosecution’s request. The names of the witnesses whose testimony was excluded were not disclosed because defense counsel was unaware of the need to call them until after the state had presented its case. Counsel stated in his offer of proof that he would use the testimony of these witnesses to impeach certain of the state’s witnesses. Given these facts, the failure to disclose witnesses’ names is not a “complete disregard of the discovery obligation,” especially where the names and addresses of the witnesses as well as their relationship to defendant and their connection with the case were well known to the prosecution prior to trial and where defense counsel did not decide to have them testify until the day before he presented the case.
The second factor is the extent of the prejudice to the opposing party. The majority’s assumption of prejudice is unwarranted by the facts. The police had investigated these witnesses, and the prosecution was aware of their names and addresses prior to trial. Nothing in the record indicates that their testimony differed from the information contained in the police reports. Defense counsel planned to have the mother testify that Eugene Lindsey was with her near Will’s body at the time of the shooting and to have the father testify that defendant was not watching television at the time he was arrested, contrary to the testimony of prosecution witnesses. The prosecution could not claim that this testimony was a surprise because it was contained in the police reports. Nor did it undermine the prosecution’s ease, although it might have discredited some of its witnesses slightly. The prosecution, therefore, would not have been prejudiced by this testimony.
The third factor is the feasibility of a continuance to rectify prejudice. Because there was no prejudice in this case, there was no need to grant a continuance.
Finally, the trial court is to consider any other relevant factors. In the instant case the majority opinion fails to consider the fact that defendant was on trial for a most serious crime — first degree murder. Because the consequences of a conviction are so great, the trial court must be very careful not to exclude relevant testimony, to the detriment of the defendant, because of counsel’s failure to disclose. In addition, the evidence in question did not relate to the central issue of the case, i. e., defendant’s claim of self defense. Because of this, the prosecution would not have been harmed had the evidence been introduced.
Rule 9.03, subd. 8, Rules of Criminal Procedure, does not expressly authorize exclusion as a sanction. The committee which drafted the ABA Standards on Discovery and Procedure Before Trial, on which Rule 9.08, subd. 8, is based, intentionally deleted the provision of the federal rules of criminal procedure which permitted exclusion of evidence as a sanction:
“Without rejecting this device as a useful sanction in some situations, some members of the Committee thought there would be difficulties in applying it against accused persons, and unfairness if the sanction was applied only against the prosecution. The Committee’s general view, moreover, was that the court should seek to apply sanctions which affect the evidence at trial and the merits of the case as little as possible, since these standards are designed to implement, not to impede, fair and speedy determinations of cases.” ABA Standards, Discovery and Procedure Before Trial, § 4.7 Comment.
Trial courts should exclude evidence only in the most' unusual situations, such as State v. Chamberlain, No. 46282 (1975), reported only in 7 Minnesota Practice and Procedure, § 464, where defendant deliberately and intentionally refused to disclose the names of his alibi witnesses. See, also, State v. Pietrasweski, 283 N.W.2d 887 (Minn.1979). Rather than excluding evidence as a sanction, the ABA committee recommends that sanctions be imposed directly on attorneys:
*377“With few exceptions (section 3.1, dealing with nontestimonial use of the person of the accused, and section 2.1(d), extending the duties of the prosecutor to his staff and certain others), the obligations imposed under these standards fall upon attorneys. Accordingly, it would seem appropriate to deal with breaches in the same way as infractions of bar discipline. Future canons of ethics might specifically so provide. Similarly, the courts’ contempt power would seem especially appropriate to willful infractions by lawyers. Subsection 4.7(b) indicates that such sanctions should be applied to attorneys where appropriate. See also section 4.3 and Commentary, supra, on attorneys’ duties with respect to custody of material . disclosed.” ABA Standards, Discovery and Procedure Before Trial, § 4.7, Comments.
Had the testimony been relevant, I do not believe that it should have been excluded under the facts of this case.