dissenting.
The majority opinion in this case reverses the trial judge stating he had no discretion to exclude evidence offered to prove the interest of the officer in the outcome of the case. The court does so without a word of analysis of the question asked or the answer given by the officer. The majority opinion states “where the questioning is curtailed before bias or interest is shown, the decision [of the trial judge] is an error of law.” 297 Or at 800.
After making this perfectly valid and undisputed observation, the opinion directly launches off on a discussion of harmless error without pointing out what error was committed. Finally, the court in its last heading called “DISPOSITION,” says “that a testifying officer’s knowledge of departmental procedures for handling suspects and potential sanctions for violation of the procedures tends to show that the officer has an interest in testifying that he followed such procedures, whether he in fact did so.” 297 Or at 801. That may be a correct general statement of the law, but how does it fit to the facts in this case?
In evaluating the cross-examination in this case, we note that the officer has already answered the first question that he is aware of internal police procedures regarding what happens when an officer uses too much force out on the street against a citizen. The question was proper, the answer was responsive and there was no objection by counsel to either the question or the answer.
The second question was:
“And if these charges are sustained against an officer, are you aware of what could happen to an officer?”1
*805The officer answered as follows:
“A There are varying things that can happen. Internal Affairs can decide to turn the investigation over to the detectives who may want to do it like a criminal proceeding, because, if Internal Affairs interviews me knowing that what I say is going to be used against me in Court because — or any officer — because it would be coerced out of me or they could just send it to the Chief, and the Chief can decide on discipline, and the union can decide to appeal and it can go to arbitration. There’s just all kinds of things that can happen.”
What did he say? Isn’t this answer not only speculative but profoundly confusing? If it is confusing to the reader, would it not be confusing to a jury who would hear the answer in a fleeting moment and would not have a prolonged period of time to sit down to decipher the transcribed answer?
The first sentence of the officer’s answer does not tell the jury anything: “There are varying things that can happen."
The second sentence consists of 83 words with several incomplete clauses. In an attempt to decipher this sentence, we separate it into sections as follows:
“[1] Internal Affairs can decide to turn over the investigation to the detectives who may want to do it like a criminal proceeding because
“[a] if Internal Affairs interviews me knowing that what I say is going to be used against me in Court because [parenthetically — or any officer]
“[b] because it would be coerced out of me
“[2] they could just send it to the Chief and the Chief can decide on discipline, and the union can decide to appeal and it can go to arbitration.”
If the part marked [1] means one coherent possibility it may be that Internal Affairs may proceed to prepare the investigation in the same manner as they would prepare a criminal proceeding, because they know that in a later court proceeding what he would say, or what any officer would say, *806would be compelled by the court. This could be in a civil suit against an accused officer or against the city, or perhaps a prosecution upon the victim’s complaint. But this is all speculation. Perhaps the officer meant the opposite, that Internal Affairs would treat the investigation like a criminal proceeding and respect the officer’s right not to incriminate himself because they know that what he says may be used against him and could be “coerced out of him” at trial. The response is obscure and confusing. Maybe the officer did not know what he thought as he began the answer.
The third sentence tells the jury that the answer is speculative: “There’s just all kinds of things that can happen.”
Most of us who have read transcripts of our own spoken words justifiably cringe at the composition of our sentences. Obviously, no law or rule of evidence requires a witness’s response to pass a basic English grammar examination. Nevertheless, if an answer taken as a whole is as speculative and confusing as the answer given in this case under the offer of proof, certainly a trial judge must have discretion either to admit the answer as conveying a message to the jury, or to exclude it as being confusing to the jury.
OEC 403 is founded on the concept of granting discretion to the trial court to exclude confusing or misleading evidence. OEC 403 provides:
“Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay or needless presentation of cumulative evidence.” (Emphasis added.)
If the word discretion conveys to legal minds any solid core of meaning, one central idea above all others, it is the idea of choice. See, Rosenberg, Judicial Discretion of the Trial Court, Viewed from Above, 22 Syracuse L Rev 635, 636 (1971). In this case, the trial judge’s choice was: “Taken as a whole, is this answer really helpful to the jury in deciding the credibility of the witness or does it tend to confuse or mislead the jury?” This court, in second-guessing the trial court’s discretionary decision, deprives the trial judge of the freedom of choice.
*807Because of the confusing and potentially misleading response,2 the decision for admission or exclusion falls within the ambit of OEC 403 and its corollary law in effect at the time of this event. We should not disturb the trial court’s discretionary ruling in this case.
Peterson, C. J., joins in this dissenting opinion.This question clearly calls for speculation. It violates at least one of the traditional advocacy commandments of cross-examination, see Younger, A Letter in Which Cicero Lays Down the Ten Commandments of Cross-Examination, ABA Litigation, Vol. 3, No. 2 (1977), in that it was not leading nor did it suggest the answer to the witness. The question could be answered in dozens of irrelevant ways. Thus, the trial judge had discretion to rule that the question was improper as calling for speculation. If counsel had reframed the question and asked, “Isn’t it a fact that internal procedures call for a full independent investigation of your conduct by the bureau?,” the question would have been proper. On the other hand, if the question was *805reframed by counsel to ask, “Isn’t it a fact if charges are sustained against an officer, his neighbors might hold him in disrespect?,” the question would obviously be improper as calling for an irrelevant answer. In this case, the offer of proof salvaged the open-end question by providing us with the officer’s answer.
If the trial judge had merely excluded the answer as confusing to the jury, we should affirm his ruling under OEC 403. However, the trial judge excluded the evidence after the offer of proof by saying:
“I’m not going to allow the testimony on this matter of proof, but I gave a reason for it, as I said before. I assume there must be a complaint filed with the Police Department by somebody before any activity takes place. You leave an inference with this jury, in a way, that would be that he did have some complaint or something to that effect filed against him and the effect of it. * * *”
Although it may be that the trial judge did the right thing for the wrong reason, he might be correct. See, State v. Hubbard, 61 Or App 350, 360-62, 657 P2d 707 (1983) (dissent of Warden, J.). In any event, since the answer would have been excluded if the judge had said the right words, any error in not admitting this confused evidence was harmless.