dissenting.
In her motion for a new trial, defendant demonstrated that she was convicted on the strength of repeated lies *124by a critical state witness and that she discovered most of those lies after trial. Those facts call into question the fairness of the trial that produced the criminal convictions. Because I would not disturb the decision of the Court of Appeals to remand for a new trial, I dissent.
Defendant stands convicted on four counts of first degree sexual abuse. The conviction was secured through the state’s use of testimony from a pivotal witness, Jenkins, who was a child abuse investigator and who, as the state concedes, lied about her educational background. Jenkins testified that she interviewed the victim and that the victim made statements incriminating defendant. Another witness, Dr. Bays, relied in part on Jenkins’ interview in forming her opinion that was adverse to defendant. It cannot be gainsaid that, under these circumstances, Jenkins’ education and training were crucial to her ability to conduct an interview that was free of leading questions or other suggestive tactics and that produced reliable statements by the interviewee.
During trial, defendant’s lawyer learned that a representative of Citrus College had told defense investigators that the college had no record that a “Lynn Jenkins” or a “Lynn Spalding” had attended there. In that form, the information was unusable in court. The college’s representative said that the college would verify the information only through a subpoena. Defense counsel did not seek a subpoena or a postponement on the basis of the information,, but continued to investigate Jenkins’ educational background during and after trial. Defense counsel asserted, in the motion for new trial, that
“[t]he post-trial investigation into Lynn Jenkins’ background required examining current and past voter registration records; marriage and divorce records; numerous calls to the registrar’s [sic] of the two colleges in question; an interview with Lynn Jenkins’ ex-husband in order to ascertain the name and location of the high school Ms. Jenkins had attended, her lack of other education, her use of no other names other than her maiden name, and her failure to obtain a GED up to the time of their separation; and, an examination of the relevant portions of the college catalogs from Southern Oregon College pertaining to the years during which the school had been attended by Mr. Jenkins.”
*125Defendant’s motion for a new trial asserted that the post-trial investigation produced newly discovered evidence, which the majority describes as follows:
“[T]here was no record that Jenkins had ever attended Citrus College; Citrus College did not offer a degree in early childhood education in the 1960s; Southern Oregon College had no record that Jenkins had ever audited any classes there; and Jenkins did not have even a high school diploma.” 320 Or at 116.1
What that description omits is the fact that, whereas the information discovered during trial suggested a factual discrepancy in Jenkins’ testimony that might be explained in a host of ways,2 the post-trial investigation developed new evidence that Jenkins had lied extensively during her testimony about her educational background.
The new trial motion was based on ORCP 64 B(4), which provides:
“A former judgment may be set aside and a new trial granted in an action where there has been a trial by jury on the motion of the party aggrieved for any of the following causes materially affecting the substantial rights of such party:
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“(4) Newly discovered evidence, material for the party making the application, which such party could not with reasonable diligence have discovered and produced at the trial.”
The rule requires an analysis of the evidence that the movant asserts is newly discovered. Neither the trial court nor the majority makes the inquiries required by the rule to determine whether the motion satisfies all of the requirements of the rule. The majority, instead, analyzes the factual discrepancy about Jenkins’ testimony that came to light during trial. *126As a result, the majority finds it necessary to address a non-issue, i.e., whether ORCP 64 B(4) “applies to evidence discovered during trial.” 320 Or at 113 (emphasis in original).3 To resolve that purported issue against defendant, the majority alters the prerequisites for a new trial motion that have been a part of our case law for many decades. The alteration is not necessary or warranted. If the evidence on which the motion is based was discovered and producible during trial, it is not evidence discovered since the trial.
The majority fails to give adequate consideration to the changes that it makes in the traditional standards for assessing whether a movant’s proffered evidence is newly discovered. The majority alters the second and third requirements from Oberg v. Honda Motor Co., 316 Or 263, 272-73, 851 P2d 1084 (1993), rev’d on other grounds_US_, 1145 S Ct 2331, 129 L Ed 2d 336 (1994), which say:
“(2) [I]t must have been discovered since the trial; (3) it must be such as, with due diligence, could not have been discovered before the trial[.]”
The majority changes those requirements to say:
“(2) It must be such as, with reasonable diligence, could not have been discovered before or during the trial;
“(3) It must be such that it cannot, with reasonable diligence, be used during trial[.]” 320 Or at 120 (footnote omitted).
Under Oberg, the second factor required the court to determine one fact: whether the evidence was discovered since the trial. That is the correct standard, because only evidence discovered since the trial can qualify as newly discovered evidence. The majority’s second requirement combines parts of the second and third Oberg requirements and expands them. It requires the court to determine whether the movant used reasonable diligence to discover evidence *127“before or during the trial.” The majority does not explain why that change is necessary. In fact, it is not necessary because,* under the traditional standard expressed in Oberg, unless evidence is discovered since the trial, it cannot be newly discovered evidence. Under the text of ORCP 64 B(4), if the movant could have discovered and produced the proffered evidence at trial, the evidence does not qualify as newly discovered evidence. The majority’s reformulation of the second Oberg requirement is an error.
The majority’s new third requirement focuses on the movant’s reasonable diligence to use the evidence during trial. Nothing in the Oberg factors mentions use of the evidence at trial, through reasonable diligence or otherwise. Oberg states the correct standard, because the inquiry under ORCP 64 B(4) is whether the moving party reasonably could have discovered and produced the evidence at the trial. The majority’s new third requirement diverts the court’s inquiry under ORCP 64 B(4) from discovery and production of evidence at trial, to use of evidence at trial. That modification is unnecessary and erroneous. It appears that the majority is intent on rewriting the traditional criteria for newly discovered evidence whether its novel formulation is needed or not.4
Overshadowing the majority’s unnecessary alteration of the requirements in Oberg is the majority’s departure from, or sub silentio modification of, our template in PGE v. Bureau of Labor and Industries, 317 Or 606, 610, 859 P2d 1143 (1993), for analyzing the legislative intention behind words in a statute. The majority holds that ORCP 64 B(4) is a statute. The rule refers to “newly discovered evidence.” In Oberg, this court has authoritatively interpreted that phrase as meaning evidence that meets the six criteria specified in Oberg. That interpretation of the meaning of the phrase “newly discovered evidence” is binding on this court under the doctrine of stare decisis and becomes a part of the rule. Stephens v. Bohlman, 314 Or 344, 350 n 6, 838 P2d 600 (1992).
*128The majority violates the PGE methodology, because it fails to begin its analysis with the text of the rule, as this court interpreted the text in Oberg. The majority asserts that “[njothing in the text of ORCP 64B(4) suggests that evidence discovered during trial is not covered by that rule.” 320 Or at 120 (emphasis added). That is not correct, because Oberg holds that “newly discovered evidence” means evidence that “must have been discovered since the trial” and “must be such as, with due diligence, could not have been discovered before the trial.” 316 Or at 272-73. Those phrases are apart of the rule as if written in at the time it was enacted. However, the majority sees fit to change them to meet the facts of this case. If it were faithful to the PGE methodology, the majority would recognize that the text and context of ORCP 64 B(4) do not include the phrases that it desires to insert into the rule. As a result of the majority’s error, the rule now reflects the intention of the majority of this court, not the intention of the legislature. The PGE methodology was designed to prevent that sort of judicial legislation. Defendant may rightfully ask why this court has seen fit to abandon its usual scheme for analyzing the words in a statute.
The majority concludes that defendant “could have used what she already knew about Jenkins’ not having attended Citrus College for substantially the same purpose” as the evidence she discovered after trial and, for that reason, the evidence was not “such as, with reasonable diligence, could not have been discovered and produced at trial.” 320 Or at 122. That analysis is flawed.
The court’s reasoning disregards the realities of cross-examination of a pivotal witness like Jenkins. During this trial, defense counsel knew only of the discrepancy regarding Jenkins’ attendance at Citrus College, but possessed no evidence to prove that she was lying about that fact during her testimony. Assuming arguendo that defendant’s counsel had obtained that evidence during a trial continuance, defendant still has a strong interest in proving at trial that Jenkins told several other lies about her educational background. Those lies were not discovered until after trial. By focusing only on the lawyer’s awareness during trial of one discrepancy in Jenkins’ testimony about whether she had attended Citrus College, the majority fails to mention, let *129alone analyze, whether the other evidence, which was discovered after trial and offered in support of the motion, is newly discovered within the meaning of ORCP 64 B(4). The motion shows that defendant’s lawyer learned after trial that Citrus College offered no degree in early childhood education in the 1960s, that Southern Oregon College has no record that Jenkins audited any classes there and that Jenkins had no high school diploma. The majority makes no showing that a continuance of the trial to resolve the discrepancy about Jenkins’ attendance at Citrus College would have resulted in discoveiy of evidence of those other facts. By using the newly discovered evidence of those additional facts in cross-examining Jenkins, the lawyer could establish that Jenkins told multiple lies about her background and not simply one falsehood about her attendance at Citrus College. There is no issue here about merely cumulative evidence. The lawyer’s objective was to destroy Jenkins’ credibility. Undoubtedly, evidence that Jenkins had lied several times would achieve that objective much more effectively than would evidence of a single he. For that reason, the majority errs in saying that defendant could have used what she knew about the discrepancy concerning Jenkins’ attendance at Citrus College for substantially the same purpose as the other evidence that she discovered after trial.
The majority’s error affects more than defendant’s right effectively to cross-examine Jenkins. It also affects her right effectively to attack the credibility of another important witness for the state. Dr. Bays relied in part on Jenkins’ interview of the victim in forming her own opinion. The exposure of Jenkins’ multiple lies duringtrial could have led the jury to reject both Jenkins’ and Dr. Bays’ testimony. Moreover, when Jenkins was confronted with the discrepancies in her testimony at the hearing on the motion for new trial, she asserted her constitutional right to remain silent. If that had occurred during cross-examination at trial, the court may well have faced a motion to strike her entire testimony, because the assertion of that right prevented cross-examination. If the jury had rejected both Jenkins’ testimony describing the victim’s incriminating statements and the testimony of the state’s medical expert, the result of the trial easily could have been different.5
*130I cannot join in the majority’s failure to analyze the evidence on which the new trial motion was based or in its unnecessary alteration of settled law to sustain the trial court’s action here. My analysis of the motion for new trial indicates that the proffered evidence is newly discovered evidence under the Oberg requirements, as well as the majority’s reformulation of those requirements, and that it satisfies ORCP 64 B(4).
The traditional high standards for a new trial, which I support, should not impede a court from granting a new trial when it appears that the defendant has discovered, after trial, that a pivotal state witness lied extensively to the jury about important facts. Perjury undermines the very heart of our jury system. In this case, the stain of perjury calls into question the validity of defendant’s convictions. Because the Court of Appeals correctly remanded for a new trial, I would affirm.
I dissent.
Fadeley and Unis, JJ., join in this dissenting opinion.She also contended that, in response to pre-trial subpoenas duces tecum for Jenkins’ personnel records, the state failed to produce all pertinent documents in its possession.
For example, Jenkins may have attended Citrus College under some name other than Jenkins or Spalding, or the college may have performed an incomplete or inaccurate search of its records, due perhaps to a miscommunication with defense counsel’s investigators. The evidence that could prove that Jenkins’ testimony was not the result of an innocent mistake was not discovered until after trial.
The majority may be more confused about the issue that it decides than the quoted statement would indicate. The majority also says:
“This case is a dispute over how much evidence had to be known and had to be usable during trial to make the balance of the evidence not such as would justify the award of a new trial.” 320 Or at 121 (emphasis in original).
That statement makes no sense. If this case only concerns the quantum of evidence necessary to justify a new trial, the majority has no reason to alter the legal requirements for demonstrating that evidence is newly discovered.
Because the majority has altered the second and third requirements from Oberg, it should not affirm the trial court’s order denying a new trial. Defendant has had no opportunity to demonstrate that her evidence is newly discovered under the new criteria announced by the court in this case. Moreover, neither the trial court nor the Court of Appeals has applied those standards to the evidence that defendant asserts is newly discovered.
The outcome of this case should not turn on the trial court’s statement that the evidence about Jenkins’ educational background was not such as would probably *130change the result if a new trial were granted. The trial court supported that statement with observations that Jenkins’ description of her educational credentials was not central to her testimony and that the jury gave little weight to that testimony. The court did not explain how it could know of, rather than speculate about, those facts, because the jury never disclosed its reaction to any aspect of Jenkins’ testimony.