dissenting.
This case was originally assigned to me. The following opinion did not garner enough votes to represent the majority; therefore, I publish it, with minor modifications and the addition of footnote 16, 316 Or at 93-94, as a dissenting opinion.1
Under OEC 412,2 if a defendant intends to offer evidence of an alleged victim’s past sexual behavior,3 the defendant shall make a written motion and offer of proof no later than 15 days before the first scheduled day of trial. OEC 412(3)(a). In this case, defense counsel filed a written motion and offer of proof seven days before the first scheduled day of trial. The issue presented is whether defense counsel’s failure to comply with the 15-day notice requirement or to satisfy one of the exceptions in OEC 412(3)(a) automatically required the trial court to impose the severe sanction of preclusion, i.e., *82to preclude defendant from presenting such evidence at his criminal trial. I would hold that it did not.
After a jury trial, defendant was convicted of rape in the first degree, ORS 163.375, sodomy in the first degree, ORS 163.405, and sexual abuse in the first degree, ORS 163.427, involving a child under the age of 12 years. Seven days before the scheduled trial date, defense counsel submitted a written motion under OEC 412(2) to offer evidence of the alleged victim’s past sexual behavior. The motion was accompanied by an offer of proof. The state moved to strike defendant’s motion on the ground that it was not timely filed, relying on OEC 412(3)(a), which states that the motion shall be made “not later than 15 days” before the scheduled trial date. The trial court granted the state’s motion, concluding that, because defendant’s motion was untimely, the court was required to exclude evidence of the alleged victim’s past sexual behavior.
Defendant attempted to introduce the same evidence during cross-examination of the state’s witnesses, arguing that OEC 412 does not bar such cross-examination if it is within the scope of the direct examination. Defendant also argued that preclusion of evidence as a mandatory sanction for failure to comply with the notice requirement of OEC 412 violates his right of confrontation and his right to compulsory process under Article I, section 11, of the Oregon Constitution4 and the Sixth Amendment to the Constitution of the United States.5 The trial court precluded the cross-examination as an extension of its ruling that the evidence was inadmissible for failure to comply with the 15-day notice requirement of OEC 412. The Court of Appeals affirmed without opinion. State v. Lajoie, 105 Or App 226, 804 P2d 1230 (1991). Because we have not previously considered whether the failure of a criminal defendant to comply with the notice requirement of OEC 412 automatically requires *83preclusion of defense evidence of the alleged victim’s prior sexual behavior, we allowed review.
I first consider defendant’s argument that OEC 412 does not apply to evidence elicited on cross-examination if it is within the scope of the direct examination.6 See Sterling v. Cupp, 290 Or 611, 614, 625 P2d 123 (1981) (the proper sequence is to analyze the state’s law before reaching state and then federal constitutional claims).
OEC 412 provides:
“(1) Notwithstanding any other provision of law, in a prosecution for a crime described in ORS 163.355 to 163.425, or in a prosecution for an attempt to commit such a crime, reputation or opinion evidence of the past sexual behavior of an alleged victim of such crime is not admissible.
“(2) Notwithstanding any other provision of law, in a prosecution for a crime described in ORS 163.355 to 163.425, or in a prosecution for an attempt to commit such a crime, evidence of a victim’s past sexual behavior other than reputation or opinion evidence is also not admissible, unless such evidence other than reputation or opinion evidence is:
“(a) Admitted in accordance with paragraphs (a) and (b) of subsection (3) of this section; and
“(b) Is evidence that:
“(A) Relates to the motive or bias of the alleged victim; or
“(B) Is necessary to rebut or explain scientific or medical evidence offered by the state; or
“(C) Is otherwise constitutionally required to be admitted.
“(3) (a) If the person accused of committing rape, sodomy or sexual abuse or attempted rape, sodomy or sexual abuse intends to offer under subsection (2) of this section evidence of specific instances of the alleged victim’s past sexual behavior, the accused shall make a written motion to offer such evidence not later than 15 days before the date on which the trial in which such evidence is to be offered is scheduled to begin, except that the court may allow the motion to be made at a later date, including during trial, if *84the court determines either that the evidence is newly discovered and could not have been obtained earlier through the exercise of due diligence or that the issue to which such evidence relates has newly arisen in the case. Any motion made under this paragraph shall be served on all other parties, and on the alleged victim through the office of the prosecutor.
“(b) The motion described in paragraph (a) of this subsection shall be accompanied by a written offer of proof. If the court determines that the offer of proof contains evidence described in subsection (2) of this section, the court shall order a hearing in chambers to determine if such evidence is admissible. At such hearing the parties may call witnesses, including the alleged victim, and offer relevant evidence. Notwithstanding ORS 40.030(2) [Rule 104(2)], if the relevancy of the evidence which the accused seeks to offer in the trial depends upon the fulfillment of a condition of fact, the court, at the hearing in chambers or at a subsequent hearing in chambers scheduled for such purpose, shall accept evidence on the issue of whether such condition of fact is fulfilled and shall determine such issue.
“(c) If the court determines on the basis of the hearing described in paragraph (b) of this subsection that the evidence which the accused seeks to offer is relevant and that the probative value of such evidence outweighs the danger of unfair prejudice, such evidence shall be admissible in the trial to the extent an order made by the court specifies evidence which may be offered and areas with respect to which the alleged victim may be examined or cross-examined. An order admitting evidence under this subsection may be appealed by the government before trial.
“(4) For purposes of this section, the term ‘past sexual behavior’ means sexual behavior other than the sexual behavior with respect to which rape, sodomy or sexual abuse or attempted rape, sodomy or sexual abuse is alleged.”
Neither party argues that the evidence that defendant sought to introduce in this case under OEC 412 is not evidence of the alleged victim’s “past sexual behavior” within the meaning of OEC 412.7 Defendant argues, however, that the notice requirement of OEC 412 cannot be used to limit *85cross-examination that is within the scope of direct examination, citing State v. Reiter, 65 Or App 304, 307, 672 P2d 56 (1983) (“[r]ule 412 is an evidentiary rule and does not by its terms or purpose limit a defendant’s right to cross-examine an adverse witness”).
The language of OEC 412 provides no basis for making the distinction that defendant asserts. OEC 412 is a blanket limitation on the introduction of evidence of an alleged victim’s past sexual behavior for a sexual crime.8 OEC 412(1) provides that “reputation or opinion evidence of the past sexual behavior of an alleged victim of [a sexual] crime is not admissible.” By its terms, OEC 412 does not distinguish between evidence of the alleged victim’s past sexual behavior offered on direct examination and such evidence elicited on cross-examination. Reputation or opinion evidence simply is “not admissible” under OEC 412, regardless of whether it is offered during direct examination or cross-examination.
Similarly, OEC 412(2) provides that “evidence of a victim’s past sexual behavior other than reputation or opinion evidence [i.e., specific instances of conduct evidence] is also not admissible,” with only three exceptions in OEC 412(2)(b). Subject to compliance with the procedural requirements of OEC 412(3), such evidence is admissible only if it “(A) [r]elates to the motive or bias of the alleged victim; or (B) [i]s necessary to rebut or explain scientific or medical evidence offered by the state; or (C) [i]s otherwise constitutionally required to be admitted.” OEC 412(2)(b).9 Each of those exceptions applies to evidence that could be elicited on cross-examination. First, evidence relating to an alleged victim’s motive or bias could be elicited on cross-examination. Second, evidence to rebut or explain medical evidence could be elicited on cross-examination; indeed, the cross-examination at issue in this case was an attempt to elicit such evidence. Third, constitutional requirements can demand the *86opportunity to elicit evidence on cross-examination. See Davis v. Alaska. 415 US 308, 94 S Ct 1105, 39 L Ed 2d 347 (1974) (denial of right of cross-examination to show bias violates Sixth Amendment to the United States Constitution) ;Delaware v. Van Arsdall, 475 US 673, 106 SCt 1431, 89 L Ed 2d 674 (1986) (trial court violated criminal defendant’s confrontation clause rights by prohibiting defendant from inquiring into possibility of bias by a prosecution witness as a result of the state dismissing the witness’s pending public intoxication charge); Olden v. Kentucky, 488 US 227, 109 S Ct 480, 102 L Ed 2d 513 (1988) (limitation on cross-examination in sexual assault case that prevented inquiry as to the cohabitation of complaining witness with a third party at time of trial violated defendant’s Sixth Amendment confrontation rights).
Further, the notice requirement of OEC 412(3)(a) makes no distinction between evidence sought to be elicited on direct examination and evidence sought to be elicited on cross-examination. OEC 412(3)(a) provides an exception from the notice requirement “if the court determines either that the evidence is newly discovered and could not have been obtained earlier through the exercise of due diligence or that the issue to which such evidence relates has newly arisen in the case.” If either of those conditions is met, the trial court may allow a defendant to introduce evidence of the alleged victim’s past sexual behavior that is admissible under OEC 412, even though the notice requirement was not met. Such evidence, if allowed, may be introduced either by cross-examination of the state’s witnesses or by direct examination of defendant’s own witnesses, and nothing in the language of OEC 412(3)(a) suggests otherwise.
OEC 412(3)(c), which describes how the trial court is to determine the admissibility of evidence offered under OEC 412, expressly refers to evidence offered on cross-examination. If the trial court, following the hearing in chambers described in OEC 412(3)(b), determines that the evidence sought to be introduced is relevant, falls within one of the three exceptions stated in OEC 412(2)(b), and is more probative than unfairly prejudicial, “such evidence shall be admissible in the trial to the extent an order made by the court specifies evidence which may be offered and areas with *87respect to which the alleged victim may be examined or cross-examined.” OEC 412(3)(c) (emphasis added). Thus, in a subsection that treats the two kinds of examination as parallel, OEC 412(3) expressly directs the trial court to prescribe what evidence maybe elicited, not only on direct examination, but on cross-examination as well.
Like the wording of OEC 412, the purposes sought to be served by OEC 412 also rebut defendant’s argument as to the proper scope of the rule. OEC 412 recognizes the privacy and dignity of rape victims. Provisions of OEC 412 were adopted specifically “ ‘to protect victims of sexual crimes from the degrading and embarrassing disclosure of intimate details about their private lives.’ ” State ex rel Davey v. Frankel, 312 Or 286, 823 P2d 394 (1991) (quoting Commentary to OEC 412, reprinted in Kirkpatrick, Oregon Evidence 202 (2d ed 1989)). Another purpose of OEC 412 is “to encourage [avoid discouraging] victims of sexual misconduct to report and assist in the prosecution of the crime not only by preventing highly prejudicial evidence from reaching the jury and thus helping to protect jury impartiality, but also by preventing victims from having their past sexual history exposed to the public.” Id. at 300 (Unis, J., dissenting). “ ‘The prospect of having past sexual conduct divulged affects not only the victim’s decision to report [the sex crime], but also the victim’s willingness to see the prosecution through.’ ” Id. (quoting Note, The Constitutionality of Statutorily Restricting Public Access to Judicial Proceedings: The Case of the Rape Shield Mandatory Closure Provision, 66 Boston Univ L Rev 271, 276 (1986)). The purposes sought to be served by the rule are deemed to override whatever marginal relevance the sexual history of the alleged victim might have, except in the three situations specified in OEC 412(2)(b), discussed above.
The notice requirement set forth in OEC 412(3)(a) serves a number of functions. Professors Wright and Graham explain those functions with respect to FRE 412, a rape shield statute on which OEC 412 is based:10
“The notice motion requirement essentially forces the defendant to tell the prosecutor and the court in advance of trial of *88his intention to use certain evidence and to ask that it be admitted at trial. * * * In addition, an offer of proof or depiction of what the defendant will attempt to prove must be provided so that all parties know what is at issue. The notice requirement prevents surprise to the prosecutor, the victim and the court. The prosecutor can weigh the evidence and determine whether or not he will object to its admission, confer with the victim on its truthfulness, and organize legal argument to oppose it if that is the chosen strategy. * * *This procedure encourages judges to act less automatically.” Wright and Graham, 23 Federal Practice and Procedure 608, § 5390 (quoting Nat. Inst. L. Enf. & Crim. Just., Forcible Rape: An Analysis of Legal Issues 26 (1978)).
Regarding Michigan’s similar rape shield statute, the Supreme Court of the United States has stated that ‘ ‘ [t]he Michigan statute represents a valid legislative determination that rape victims deserve heightened protection against surprise, harassment, and unnecessary invasions of privacy. The statute also protects against surprise to the prosecution.” Michigan v. Lucas, 500 US_, 111 S Ct 1743, 1746, 114 L Ed 2d 205 (1991). The notice requirement permits a prosecutor to investigate the defendant’s evidence and to prepare arguments against its admission. Ill S Ct at 1746-47. The statute protects against undue delay by allowing time for the trial court to hold a hearing on the admissibility of the proposed evidence. Also, the notice requirement allows the court, before the trial begins, to determine whether the evidence falls within one of the three exceptions in OEC 412(2) (b) and, if so, whether the probative value of the evidence outweighs its possible unfair prejudicial effect. As Justice Blackmun stated in a separate concurring opinion in Michigan v. Lucas, supra, “a notice-and-hearing requirement is specifically designed to minimize trial delay by providing the trial court an opportunity to rule on the admissibility of the proffered evidence in advance of trial.”11 111 S Ct at 1749 (Blackmun, J., concurring in the judgment).
None of the purposes — the protection against surprise, harassment, unnecessary invasions of privacy, undue delay, and providing the trial court with an opportunity to determine the admissibility of the proffered evidence — *89would be served by an interpretation of OEC 412 that rendered cross-examination immune from the rule’s procedural requirements and limitations. To serve those purposes, OEC 412 must apply to evidence sought on cross-examination, as well as to that sought on direct examination. Because this interpretation is supported by the statute’s language and best fulfills the statute’s purposes, OEC 412, including the notice requirement of OEC 412(3)(a), applies to evidence that a defendant intends to offer on direct examination and on cross-examination.
I next consider the question whether, under the record in this case, OEC 412 requires preclusion as a mandatory sanction.
OEC 412(3)(a) provides that, if a defendant intends to offer evidence of the alleged victim’s past sexual behavior, “the accused shall make a written motion to offer such evidence [which shall be accompanied by a written offer of proof, OEC 412(3)(b)], not later than 15 days before the date on which the trial in which such evidence is to be offered is scheduled to begin,” to be followed by a hearing in chambers to discuss the admissibility of the evidence. As previously stated, OEC 412(3)(a) provides an exception from the 15-day notice requirement “if the court determines either that the evidence is newly discovered and could not have been obtained earlier through the exercise of due diligence or that the issue to which such evidence relates has newly arisen in the case.” OEC 412 does not state expressly what sanction is applied for noncompliance with the 15-day notice requirement.
The trial in this case was originally set to begin on August 29, 1989. It was rescheduled twice at the request of the state, and began on October 31,1989. Defendant provided a written motion to offer evidence of the victim’s past sexual behavior and an affidavit on October 24, seven days before the first scheduled day of trial. Defendant, therefore, admittedly failed to meet the 15-day notice requirement. And, although defendant argued that some of the evidence he sought to introduce related to a newly-arisen issue, the trial court correctly concluded that the issue in question was present from the outset of the case.
*90At trial and on appeal, defendant argued that mandatory preclusion of the evidence of the alleged victim’s past sexual behavior that he sought to introduce violated his right of confrontation and his right to compulsory process under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the Constitution of the United States.
In State v. Mai, 294 Or 269, 277, 656 P2d 315 (1982), this court considered whether a sanction precluding the defendant from introducing evidence for defendant’s violation of reciprocal discovery statutes violated Article I, section 11, of the Oregon Constitution. The specific question in State v. Mai, supra, was “whether the preclusion sanction of ORS 135.865 [was] an unconstitutional limitation upon the [defendant’s] right to obtain the testimony of a witness. ’ ’ 294 Or at 273. This court concluded that the compulsory process clause in Article I, section 11, of the Oregon Constitution “protects both the [defendant’s] right to the attendance of the witness and the testimony of the witness,” 294 Or at 272, and that Oregon’s compulsory process clause is to be construed in the same way that the Supreme Court of the United States construed the virtually identical federal counterpart in Washington v. Texas, 388 US 14, 87 S Ct 1920, 18 L Ed 2d 1019 (1967). 294 Or at 272.
In Washington v. Texas, supra, the Supreme Court of the United States held that the provisions of the Sixth Amendment’s compulsory process are binding on the states as a component of the Fourteenth Amendment’s Due Process Clause, id. at 17-19, and struck down a state statute that rendered persons charged as principals, accomplices, or accessories in the same crime incompetent to testify as witnesses for one another, id. at 23. By preventing the defendant from having the benefit of his accomplice’s testimony, the Court concluded that “the State arbitrarily denied him the right to put on the stand a witness * * * whose testimony would have been relevant * * * to the defense.” Id.
In State v. Mai, supra, this court stated that “the fundamental right that the [state] compulsory process clause aims to protect is ‘the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth *91lies.’ ” 294 Or at 274 (quoting Washington v. Texas, supra, 388 US at 19).12 In State v. Mai, supra, this court said:
“There can be no denying that the imposition of the preclusion sanction may result in the defendant’s being unable to call witnesses whose testimony might be relevant * * * and exculpatory. Therefore, the [preclusion] sanction should be imposed only when no lesser sanction would accomplish the aim of the statute, and then only if the state would be prejudiced if the witness or witnesses were permitted to testify even though the statute had not been complied with.” Id. at 277 (emphasis added).
This court concluded:
“We hold that the preclusion sanction of ORS 135.865 is not inconsistent with Article I, section 11, of the Oregon Constitution, provided that the court finds that the prosecution is prejudiced by the defendant’s failure to comply with the reciprocal discovery statutes, and provided further, that it appears that no sanction short of preclusion effectively will *92avoid the prejudice which the defendant’s lack of compliance created.” Id. at 280 (emphasis added).13
In State v. Ben, 310 Or 309, 798 P2d 650 (1990), the defendant was convicted of various criminal offenses. Defense counsel violated ORS 135.585 to ORS 135.873, Oregon’s reciprocal discovery statutes, when he failed to disclose the names of two defense witnesses until the morning of the trial and when he instructed witnesses not to speak to the prosecutor unless he was present. As a sanction for noncompliance with the discovery statutes, the trial court imposed the preclusion sanction — a sanction expressly made available to the court by the statute14 — and refused to allow the testimony of the two defense witnesses. N othing in the record indicated that prejudice to the state had in fact occurred. State v. Ben, supra, 310 Or at 318. Additionally, it did not appear from the record, and the trial court made no pertinent findings, that no sanction short of preclusion effectively would have avoided the prejudice that the defense counsel’s lack of compliance with the discovery statute created.15 Id. This court reversed the defendant’s convictions and held that the trial court erred in imposing the preclusion sanction and that that error required a new trial. “Courts may only preclude [defense] testimony,” this court said, “when to do so *93achieves the purpose of the discovery statute and the other party [state] has been prejudiced.” Id. at 316-17 (emphasis added). The effect of the trial court’s error, this court held, “was to deny defendant a fair trial. * * * Erroneously preventing defendant from offering both direct and circumstantial evidence supporting his version of the facts struck at the heart of his [defense].” Id. at 319.
In State v. Burdge, 295 Or 1, 10 n 8, 664 P2d 1076 (1983), this court stated that “when our state processes conflict with a fundamental federal constitutional right the state process must yield” (citing Washington v. Texas, supra). In State v. Burdge, supra, this court held that exclusion of a defense witness’s testimony in a criminal case as a sanction was impermissible where a defense witness violated stipulation of counsel to exclude witnesses or OEC 615 that governs exclusion of witnesses from the courtroom. This court reasoned that (1) “exclusion of a [defense] witness [in a criminal case] is too grave a sanction where the violation was not intentional and not procured by the connivance of counsel or for some improper motive, ” 295 Or at 14 (adopting reasoning in United States v. Schaefer, 299 F2d 625 (7th Cir), cert den 370 US 917 (1962)), and (2) “[r]efusal to allow defense witnesses to testify for violation of an exclusion order should be imposed only when necessary to preserve the integrity of the fact-finding process and requires that the competing interests be closely examined,” id. (citing Berger v. California, 393 US 314, 315, 89 S Ct 540, 21 L Ed 2d 508 (1969)).
State v. Mai, supra, State v. Burdge, supra, and State v. Ben, supra,16 make it clear that, although there are *94instances in which the preclusion sanction may be employed,17 trial courts are not to impose the preclusion sanction against defendant in a criminal case mechanistically. Because the standards or safeguards that this court required in those cases are not provided in OEC 412, *95interpreting OEC 412 to require automatic preclusion of defense evidence from a criminal trial for the defense counsel’s failure to comply with the 15-day notice requirement would violate Article I, section 11, of the Oregon Constitution.
Our obligation is to construe OEC 412, if possible, so as to satisfy the constitution, i.e., our obligation is to construe OEC 412, if possible, in a manner that protects the admission of constitutionally-mandated evidence.18 We note that ‘ ‘ [t]his court is committed to the proposition that statutes are to be construed so as to satisfy the constitution unless no other construction is possible.” Roberts v. Mills, 290 Or 441, 447, 622 P2d 1094 (1981). See also State v. Edgmand, 306 Or 535, 540, 761 P2d 505 (1988) (court is to preserve the legislature’s intended purpose to the extent that the statute can be construed to avoid constitutional problems).
The standards or safeguards that this court articulated in State v. Mai, supra, State v. Burdge, supra, and State v. Ben, supra, provide the framework for a constitutionally saving construction of OEC 412. Applying that framework, we construe OEC 412 to permit courts to preclude defense evidence in a criminal case for failure of defense counsel to comply with the notice requirement in OEC 412(3)(a) only when (1) to do so achieves the purposes of the statute, the violation is prejudicial to the prosecution, and no sanction short of preclusion effectively will avoid the prejudice to the prosecution created by the violation, or (2) to do so is necessary to preserve the integrity of the factfindingprocess.19 The *96determination of whether under this rule preclusion is justified must be made on a case-specific analysis based on the facts of the case, and should be supported by pertinent findings. The basic nature of the judicial inquiry will require the court to follow, to the extent possible under the circumstances,20 essentially the same sequential steps that it should follow for determining admissibility under OEC 412.21 The sequential steps of that judicial inquiry are described below.
The trial court in this case ruled that, because defense counsel failed to comply with the 15-day notice requirement of OEC 412(3)(a) and failed to satisfy one of the exceptions to the 15-day notice requirement in OEC 412(3) (a) (which we have determined was correct), preclusion of defense evidence of the alleged victim’s past sexual conduct was automatically required, and that the absence of prejudice was irrelevant. That ruling is contrary to the interpretation of OEC 412 that I have stated above. Because of that erroneous ruling, the trial court did not make the necessary judicial inquiry and pertinent findings within the special procedural framework, as set forth in OEC 412(3), within which the admissibility of evidence of the alleged victim’s prior sexual conduct must be determined.
*97I would, therefore, vacate the decision of the Court of Appeals and the judgment of the trial court. I would remand the case to the trial court for further proceedings with instructions. Under OEC 412(3), the trial court first would determine the sufficiency of defense counsel’s offer of proof, i.e., whether the offer of proof contains evidence that falls within one of the three exceptions stated in OEC 412(2)(b). OEC 412(3) (b). If the offer of proof is determined to be sufficient, the trial court then would order a hearing in chambers,22 at which the admissibility of the evidence would be decided in accordance with the procedure set forth in OEC 412(3)(b) and (c). If the trial court determined, on the basis of the hearing, that the evidence that defense counsel sought to offer is relevant,' that it falls within one of the three exceptions stated in OEC 412(2)(b), and that the probative value of such evidence outweighs the danger of unfair prejudice,23 then the evidence offered by defense counsel under OEC 412(2)(b) would “be admissible in the trial to the extent an order by the court specifies evidence which may be offered and areas with respect to which the alleged victim may be examined or cross-examined,” OEC 412(3)(c), unless the trial court, based on the facts of record, found that preclusion was permissible under the rule stated above.
After following this procedure on remand, if the trial court determined that the evidence was properly excluded or that preclusion was justified, the trial court should be instructed to reinstate the judgment of conviction. If the trial court determined that the evidence was not properly excluded and that preclusion was impermissible, the trial court would need to determine whether failure to admit the evidence was harmless error.24 If the trial court determined that the error *98was harmless, the trial court should be instructed to reinstate the judgment of conviction. If the trial court did not determine that the error was harmless, defendant would be entitled to a new trial and the judgment of conviction would remain vacated.
Following this procedure would avoid the violation of both the state and federal constitutional provisions caused by a per se rule of preclusion. Strict application of the statutory rule, as required by the majority, not only violates this court’s precedents and this state’s constitution, but also violates the federal constitution. See supra, 316 Or at 90-96, and accompanying footnotes.
I would reverse the decision of the Court of Appeals, vacate the judgment of the circuit court, and remand this case to the circuit court with instructions. I respectfully dissent.
Van Hoomissen and Fadeley, JJ., join in this dissenting opinion.I borrow this approach from Justice O’Connell in Baxter v. Baker, 253 Or 376, 380, 451 P2d 456 (O’Connell, J., dissenting), modified 454 P2d 855 (1969).
Although OEC 412 sometimes is called Oregon’s “Rape Shield Law,” State ex rel Davey v. Frankel, 312 Or 286, 288 n 1, 823 P2d 394 (1991), id. at 296 n 1 (Unis, J., dissenting), that statute applies to a range of sex-related crimes. See infra, note 8.
“Past sexual behavior” is defined in OEC 412(4), set out in the text of this opinion, 316 Or at 84.
Article I, section 11, of the Oregon Constitution provides in part: “In all criminal prosecutions, the accused shall have the right * * * to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor
The Sixth Amendment to the Constitution of the United States provides in part: “In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him [and] to have compulsory process for obtaining witnesses in his favor * *
See OEC 611(2) (stating standard for scope of cross-examination).
At trial, defendant did make that argument with regard to some of the proffered evidence; however, he did not pursue the argument on appeal.
OEC 412 applies only to “a prosecution for a crime defined in ORS 163.355 to 163.425, or in a prosecution for an attempt to commit such a crime[.]” OEC 412(1). ORS 163.355 to 163.425 define various sexual crimes, such as rape, sodomy, and sexual abuse.
The exceptions “are not mutually exclusive. Evidence admissible under the first two [exceptions] may also be constitutionally required to be admitted.” Kirkpatrick, Oregon Evidence 203 (2d ed 1989).
See Commentary to OEC 412, reprinted in Kirkpatrick, supra, at 201 (“[t]he rule [OEC 412] is based on Rule 412 of the Federal Rules of Evidence”).
OEC 412(3)(c) is designed to exclude irrelevant and unfairly prejudicial evidence.
In Chambers v. Mississippi, 410 US 284, 302, 93 S Ct 1038, 35 L Ed 2d 297 (1973), the Supreme Court invalidated a state’s hearsay rule on the ground that it abridged the defendant’s right to “present witnesses in his own defense.” The determination to exclude defense evidence cannot be made mechanistically, i.e., it must be made only after a careful fact-specific weighing of the competing government and individual defendant’s interests. Id. The Court chose to rest its analysis on defendant’s Fourteenth Amendment due process right to a fair trial, but in finding defendant’s due process rights to have been violated relied on its prior construction of the Sixth Amendment rights to confrontation and compulsory process. “Few rights,” said the Court, “are more fundamental than that of an accused to present witnesses in his own defense.” Id. at 302 (citing, e.g., Washington v. Texas, 388 US 14, 19, 87 S Ct 1920, 18 L Ed 2d 1019 (1967)).
In Rock v. Arkansas, 483 US 44, 107 S Ct 2704, 97 L Ed 2d 37 (1987), the Supreme Court stated that, although the right of a criminal defendant “to present relevant testimony is not without limitation,” id. at 55, “aState* * * may not apply a rule of evidence that permits a witness to take the stand, but arbitrarily excludes material portions of his testimony.” Id. In Rock v. Arkansas, the Court held that a criminal defendant’s constitutional right to testify may not be barred by a per se rule against hypnotically-refreshed testimony, but such testimony must be evaluated for reliability in each case. Id. at 62.
See also Taylor v. Illinois, 484 US 400, 411, 108 S Ct 646, 98 L Ed 2d 798 (1988) (“[t]he defendant’s right to compulsory process is itself designed to vindicate the principle that the ‘ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts’ ”) (quoting United States v. Nixon, 418 US 683, 709, 94 S Ct 3090, 41 L Ed 2d 1039 (1974)).
Nothing in the record in this case suggests that defense counsel’s failure to comply with the notice requirement was the result of “willful misconduct” or was designed to obtain a “tactical advantage.”
In State v. Mai, 294 Or 269, 277-78, 656 P2d 315 (1982), this court upheld preclusion of witnesses where defense counsel refused to disclose the witness list as required by the reciprocal discovery statute, and, after the trial court granted recess, defense counsel blocked interviews of a witness that were to have taken place during recess.
ORS 135.865, at issue in State v. Mai, supra, and State v. Ben, 310 Or 309, 798 P2d 650 (1990), provided:
“Upon being apprised of any breach of the duty imposed by the provisions of ORS 135.805 to 135.873, the court may order the violating party to permit inspection of the material, or grant a continuance, or refuse to permit the witness to testify, or refuse to receive in evidence the material not disclosed, or enter such other order as it considers appropriate.”
Thus, the statute specifically authorized preclusion as a sanction, and yet this court held that the preclusion sanction was constitutional only under certain circumstances.
In State v. Ben, supra, 310 Or at 319, this court stated:
“[A]s the United States Supreme Court observed in Taylor v. Illinois, 484 US 400, 418, 108 S Ct 646, 98 L Ed 2d 798, reh den 485 US 983, 108 S Ct 1283, 99 L Ed 2d 494 (1988), in order for the adversary process to function effectively, the attorney must speak for the client when responding to discovery and the client must, at least for the purposes of that trial, accept the consequences of the attorney’s decisions.”
State v. Mai, supra, was an opinion authored by a member of the present majority and joined by one other justice in the present majority. Chief Justice Lent, joined by Justice Linde, dissented because they would have held that imposition of the preclusion sanction against a criminal defendant for a failure to comply with the reciprocal discovery statutes is inconsistent with our most basic constitutional principles:
“I agree with the majority that Section 11 of Article I of the Oregon State Constitution guarantees to a defendant not only the right to have process to compel witnesses to attend his trial but the right to have them testify. I must dissent, however, from the majority’s holding that the legislature can preclude a defendant’s witness from testifying because defendant’s counsel did not allow discovery.” State v. Mai, supra, 294 Or at 280 (Lent, C. J., dissenting).
State v. Burdge, 295 Or 1, 664 P2d 1076 (1983), was aunanimous six-justice opinion, joined by two members of the present majority. State v. Ben, supra, was a unanimous *94opinion by this court less than three years ago, authored by the author of the present majority and joined by two other members of the present majority and the two justices joining this dissent in this case.
The majority fails to heed its own holdings in these three cases. Indeed, based on State v. Mai and ignoring State v. Burdge and State v. Ben, the majority in this case states that “a statute providing for preclusion of evidence is unconstitutional as applied only if a trial court employs the preclusion sanction when a less drastic sanction will serve the same purpose as preclusion.” 316 Or at 74 (emphasis added). Thus, even according to the majority, because preclusion is unconstitutional when a less drastic sanction will serve the same purpose as preclusion, a statute which does not provide for less drastic sanctions is in jeopardy. Faced with a constitutional challenge to such a statute, this court’s alternatives are either (1) to find a saving construction of the statute to provide for less drastic sanctions, thereby construing the statute in a way that makes it constitutional, or (2) to declare the statute unconstitutional. Instead, the majority’s approach is (1) to consider the less drastic sanctions available or “arguably available” in the statute and, concluding that those sanctions do not “accomplish all three purposes [of the statute] fully,” (2) to conclude, therefore, that the statute is constitutional. 316 Or at 76. Surely the majority does not really mean that the legislature can select a purpose for a statute and then, ipso facto, any sanction that the legislature selects to achieve that purpose is constitutional if the legislature did not see fit to also provide for a less severe sanction that fully achieves the same purpose. Yet, that is the majority’s approach to this case.
The majority determines that issuing a continuance would not be an appropriate result because a continuance “would aggravate trial delay and * * * would defeat the purpose of protecting the alleged victim from needless anxiety.” 316 Or at 76. If that is true, the prosecution had already “defeated] the purpose of protecting the alleged victim from needless anxiety,” because the trial had already been rescheduled twice at the request of the state, 316 Or at 89, a fact conveniently overlooked by the majority. I do not intend to minimize the significance of that purpose, but it must be considered in conjunction with other rights and interests at stake which, as a constitutional matter, means that this purpose cannot be the basis, as the majority holds, for mechanistically applying preclusion as a sanction for violating the 15-day notice requirement.
It is also interesting to note that defendant argues in his brief that, “[i]n considering preclusion in the context of this case, it is noted that there is no claim of prejudice, no claim of additional embarrassment to the alleged victim, and no effort to determine whether the purposes of the statute could be vindicated by methods other than preclusion.” The state’s response in its brief is that “prejudice to the prosecution is inherent in violation of the notice rule,” with no attempt to argue that there was actual prejudice.
In Michigan v. Lucas, 500 US_, 111 S Ct 1743, 114 L Ed 2d 205 (1991), which involved the converse of the situation presented in this case, the Supreme Court of the United States also stated that in some instances preclusion would not violate the federal constitution. The Court acknowledged its holding in Taylor v. Illinois, supra, however, that “alternative sanctions would be ‘adequate and appro*95priate in most cases.’ ” Michigan v. Lucas, supra, 111 S Ct at 1748 (quoting Taylor v. Illinois, supra, 484 US at 413). In Lacas, the Supreme Court determined that a rule that preclusion of defense evidence for violating a notice and hearing requirement of the Michigan rape shield law was perse unconstitutional was atoo-rigid application of the Sixth Amendment to the Constitution of the United States. Id. at 1748. Here we are not confronted with the issue of whether preclusion of defense evidence is per se unconstitutional, but whether preclusion is mandatory for counsel’s noncompliance with OEC 412(3)(c) notice requirements.
Of course, OEC 412 includes a provision for the admissibility of evidence which “[i]s otherwise constitutionally required to be admitted,” OEC 412(2)(b)(C), but this provision is not considered under the statutory procedure unless the 15-day notice requirement in OEC 412(3)(a) is first complied with.
In Taylor v. Illinois, supra, 484 US at 417, based on the trial court’s findings that the defendant’s discovery violation amounted to “willful misconduct” and was *96designed to obtain a “tactical advantage,” the Supreme Court determined that “[r]egardless of whether prejudice to the prosecution could have been avoided” by a lesser sanction, “the severest sanction [(preclusion) was] appropriate” and did not violate the Compulsory Process Clause.
The defendant’s failure to comply with the notice requirement in OEC 412(3)(a) may prevent the state from adequately arguing against the admissibility of the proffered evidence. In that event, and if preclusion is deemed not to be an appropriate sanction, a final determination on the admissibility of the evidence under OEC 412 will need to be made at a later time.
If the court, in following those sequential steps, determines that the proffered evidence is not admissible under OEC 412, it is irrelevant that the notice requirement was not followed. Following the procedure in this manner will result in a determination in many instances of whether the evidence would be admissible under the statutory guidelines, thereby preventing post-conviction claims for ineffective assistance of trial counsel in cases in which the evidence was precluded for failure to comply with the notice requirement where the evidence was not admissible under the statute even had defendant complied with that requirement.
Of course, becausé the notice requirement is for the benefit of the state and its witnesses, the state can waive any objection it may have as a result of the defendant’s noncompliance with the notice requirement.
See State ex rel Davey v. Frankel, supra, 312 Or at 294 (defining meaning of phrase “in chambers” within the context of OEC 412 to mean only that the hearing must take place in the judge’s office).
Unlike the balancing required under OEC 403, where the evidence is admissible unless prejudice substantially outweighs probative worth, OEC 412(3)(c) is cast in favor of exclusion.
“[A] verdict against a criminal defendant may be affirmed notwithstanding trial error if the error did not affect a ‘substantial right’ of the defendant. OEC 103(1). This court has interpreted this to mean that the verdict may be affirmed if there is ‘little likelihood’ that the error affected the verdict.” State v. Isom, 306 Or 587, 595-96, 761 P2d 524 (1988) (citing State v. Hansen, 304 Or 169, 180-81, 743 P2d 157 (1987))'; see also State v. Williams, 313 Or 19, 56, 828 P2d 1006 (1992) (Unis, J., *98dissenting) (describing constitutional basis for Oregon’s harmless error analysis), and State v. Walton, 311 Or 223, 230-31, 809 P2d 81 (1991) (describing constitutional basis for Oregon’s harmless error rule and contrasting rule under federal constitution).