specially concurring.
I would prefer to join the majority opinion because I would not wish to imply judicial approval of the prosecutorial conduct which the trial court found to have occurred. Unless we are rulemaking, however, our approval or disapproval does not have the force of law which requires trial court action. I cannot join the majority because it has divined a new rule from law that does not support that rule. Neither the majority nor the defendant has offered a source of law which implies that the trial court erred, and I will review each of their theories in turn.
I. Ethics
Defendant first argues that the prosecutor’s acts were unethical. She cites us to the American Bar Association Standards of Criminal Justice which suggest that such advice is improper. Section 3.1(c) provides:
“A prosecutor should not obstruct communications between prospective witnesses and defense counsel. It is unprofessional conduct to advise any person to decline to give information to the defense.”
She also refers us to the newly published ABA Discussion Draft of the Model Rules of Professional Conduct which also would bar such conduct. Section 3.10(e) provides:
“The prosecutor in a criminal case shall not discourage a person from giving relevant information to the defense.”1
The question, however, is not one of propriety; it is one of law. The recommendations of these ABA studies may influence future modifications of the Rules of Professional Conduct promulgated by this court to regulate the ethics of the practice of law, but they have no controlling effect in Oregon either as ethical standards or as authoritative rules of law. Even were the court inclined to enforce an ethical standard as we would a rule of constitutional law, cf. State v. Jones, 279 Or 55, 60, 566 P2d 867 (1977), there is no enforceable ethical standard violated by the prosecutor’s conduct in this case.
*546The majority relies on certain sections of Oregon’s Code of Professional Responsibility, but then acknowledges that the sections do not bar the conduct in this case:
“We do not imply that the prosecutor in this case violated one of these disciplinary rules. * * *”
A lawyer preparing for trial has little reason to anticipate that his non-violation of a non-applicable disciplinary rule will later be deemed “improper” and thus trigger a mistrial. Nor should a trial court be expected to anticipate that an appellate court which has not exercised its authority to determine such conduct to be unethical and bar it by promulgation of disciplinary rules, will so rule spontaneously in the ad hoc review of a criminal conviction. I conclude that the non-violation of our non-applicable disciplinary rules gives no basis for the majority holding.
II. Statutes
The majority also cites ORS 135.815, one of the criminal procedure discovery statutes. There is no suggestion that the prosecutor failed in any way to fully comply with statutory requirements for discovery. Rather, the majority, looking to the statute and the disciplinary rules, all of which were complied with, finds what it calls a “policy” which forbids far more than the words of those laws forbid.
There are two problems with reliance upon this newly discovered policy. First, it is bald judicial legislation masquerading as enforcement of policies. If there is to be such a policy, the legislature should enact it or we should promulgate it by rule.
Second, the unstated implications are enormous and unacceptable. The disciplinary rules upon which the majority relies (except for DR 7-103(b) which merely codifies Brady v. Maryland, 373 US 83, 83 S Ct 1194, 10 L Ed 2d 215 (1963)), are applicable to all lawyers. The civil litigation counterparts to the criminal discovery statutes, ORCP 36 through 46, contain far more stringent discovery require ments than exist on the criminal side. Thus, the “policy” which the majority has discovered in the criminal statute must be implied even more forcefully in the civil procedure rules. Yet, I doubt that the majority would *547approve a mistrial in a civil case if it is discovered that an attorney advised a potential witness that he ought not to talk to the other side except as required under discovery procedures. This observation is not intended to alarm civil practitioners — rather, I wish only to demonstrate the lack of substance in the majority’s rationale.
III. The Constitution
Defendant contends that the prosecutor’s action went beyond mere impropriety. She makes no assertion that the discovery statutes were not fully complied with. Rather, she contends that the action was a breach of constitutional law, thus raising issues which the majority did not reach. First, she asserts that it violated her right to the assistance of counsel assured by the 6th amendment to the United States Constitution and her right to be heard by counsel assured by Article I, Section 11, of the Oregon Constitution. She cites Powell v. Alabama, 287 US 45, 53 S Ct 55, 77 LEd 158 (1932), for the proposition that the right to counsel extends to the pretrial stage of the prosecution so that counsel may investigate and prepare for trial. In Powell, counsel was not appointed until the morning of trial. The simple answer to this contention is that defendant was provided with counsel at the inception of the prosecution. Defendant argues, however, that the prosecution cannot frustrate defendant’s attorney’s investigation by discouraging its witnesses from being interviewed by defendant’s lawyer or investigators. It is true that the state, consistent with due process, must disclose exculpatory evidence during the course of a prosecution, Brady v. Maryland, supra, and if the state statutorily requires the defense to provide discovery, it must reciprocate, Wardius v. Oregon, 412 US 470, 93 S Ct 2208, 37 LEd2d 82 (1973). Even these rights, however, are unrelated to the right of counsel because they exist regardless of whether a defendant is represented by counsel. Defendant has cited no persuasive case or principle of law which applies the constitutional right of counsel to prohibit the prosecution from restricting pretrial access to witnesses it expects to call and I am aware of none.2
*548Defendant also argues from Wardius that the prosecutor’s act deprived defendant of a proper “balance of forces between the accused and his accuser” as required by due process. 412 US at 474.1 doubt that the phrase was intended as broadly as defendant suggests. Trial must be a fair fight, or at least one fought according to rules of law, but not necessarily an even fight. Defendant is entitled to the full benefit of her rights regardless of the balance of power. The question here is not one of balance, but one of definition of the defendant’s rights as they may be affected by the prosecutor’s act.
Defendant also contends that the prosecutor’s conduct abridged her right under the same constitutional provisions to confrontation and to meet the witnesses against her face to face. We have consistently held that the constitutional right to confrontation is essentially a right to cross-examine the witnesses at trial and to allow jury evaluation of their credibility. State v. Smyth, 286 Or 293, 593 P2d 1166 (1979). The United States Supreme Court also has held that “The right to confrontation is basically a trial right. It includes both the opportunity to cross-examine and the occasion for the jury to weigh the demeanor of the witness.” Barber v. Page, 390 US 719, 725, 88 S Ct 1318, 20 LEd2d 255 (1968). These cases applying the right of confrontation at trial do not necessarily restrict the scope of the right, but this is not a case of pretrial adversarial confrontation such as would justify extending the right to the pre-trial stage, see, e.g., United States v. Wade, 388 US 218, 87 S Ct 1926, 18 LEd2d 1149 (1967). We have held that the state need not provide a preliminary hearing for the purpose of discovery, State v. Stanford, 245 Or 397, 421 P2d 988 (1966), cf. State v. Clark, 291 Or 231, 630 P2d 810 (1981), and I see no basis in the right to confrontation to require informal access to state’s witnesses.
Finally, defendant argues that the prosecutor’s act deprived her of due process in that she was denied a fair trial. She cites Gregory v. United States, 369 F2d 185 (DC Cir 1966), a case much like this except that it was capital. She particularly cites this passage from the opinion:
“A criminal trial, like its civil counterpart, is a quest for truth. That quest will more often be successful if both *549sides have an equal opportunity to interview the persons who have the information from which the truth may be determined. The current tendency in the criminal law is in the direction of discovery of the facts before trial and elimination of surprise at trial. A related development in the criminal law is the requirement that the prosecution not frustrate the defense in the preparation of its case. Information favorable to the defense must be made available to the defense. Brady v. State of Maryland, 373 US 83, 83 S Ct 1194, 10 LEd2d 215 (1963). Reversals of convictions for suppression of such evidence, and even for mere failure to disclose, have become commonplace. It is not suggested here there was any direct suppression of evidence. But there was unquestionably a suppression of the means by which the defense could obtain evidence. The defense counsel could not know what the eye witnesses to the events in suit were to testify to or how firm they were in their testimony unless defense counsel was provided a fair opportunity for interview. In our judgment the prosecutor’s advice to these eye witnesses frustrated that effort and denied appellant a fair trial.” (Footnotes omitted.) 369 F2d at 188-189.
The Gregory application of the due process clause is not persuasively reasoned. First, the notion that a criminal trial is necessarily “a quest for truth” is more an ideal than a premise for legal reasoning. As a premise for application of the due process clause, it does not withstand even scant analysis. An innocent defendant who puts the state to its proof or attempts to prove his innocence or both, may well be said to search for truth. A defense lawyer who moves to suppress evidence, properly performs his duty to his client, but cannot be said to be questing for truth. Particularly if the defendant actually did the acts charged, his lawyer may reasonably pursue a defense strategy more advantageous to his client than truthseeking.
The Gregory conclusion that “the current tendency in the criminal law” to require discovery by rule and statute yields a doctrine of constitutional magnitude whereby, as a matter of due process, defense counsel must be “provided a fair opportunity for interview” of witnesses to determine prior to trial “how firm” the witness is, is also questionable. Surely due process does not impose a duty for the prosecution to provide a fair opportunity for interview *550of a witness whose personal or family safety would be endangered or a sensitive witness (e.g., a child or rape victim), yet the necessity for defense counsel to determine the firmness of such a witness would be just as great. Opportunity to test firmness is too weak an analytical reed upon which to create a new corollary of the constitutional right of counsel. In contrast, the United States Supreme Court has held that “There is no general constitutional right to discovery in a criminal case * * Weatherford v. Bursey, 429 US 545, 559, 97 S Ct 837, 51 LEd2d 30 (1977).3 Contrary to Gregory, in the absence of special circumstances which are not presented here, due process does not require “fair opportunity for interview.”4
In summary, I, like the Court of Appeals, should not be understood as approving or authorizing the practice by any attorney in any case of discouraging witnesses from talking to the other side. Rather, despite the valiant effort of defense counsel to provide a valid theory supporting a contrary result, I conclude that under the circumstances of this case, there is no legal prohibition against the advice of the prosecutor and no cognizable right of the defendant which was violated by it.
I concur in the portion of the majority opinion which concludes that defendant suffered no prejudice arising from the prosecutor’s act.
Lent, J., joins in this specially concurring opinion.This provision does not appear as a part of a rule in the Proposed Final Draft of May 30,1981. There are comments to Rule 3.8 which convey similar content. Ibid, at 157.
See cases collected at Annot., Interference With Interrogation of Witnesses, 90 ALR3d 1231.
This citation is more apt than that to Brady v. Maryland in the quoted excerpt.
Due process was one basis of Gregory. The other was an extension of the statutory requirement that the prosecution provide a list of names and addresses of witnesses. Cf. ORS 135.815(1). This court has declined to use its inherent power to promulgate a rule of discovery beyond that required by the discovery statutes or Brady n. Maryland. State v. Koennecke, 274 Or 169, 182-83, 545 P2d 127 (1976).
There are cases holding such advice to offend due process, but their reasoning is more conclusory than that in Gregory. See 90 ALR3d 1231, supra, note 1. The cases cited by the Court of Appeals to the contrary generally do not involve advice to the witnesses not to talk to the defense.