specially concurring.
I concur in that part of the majority opinion holding that the trial court did not err because the witness Boyd’s testimony would have been inadmissible for the reason that it would have been an attempt to impeach a witness about a collateral matter raised in the cross-examination of that witness.
The Sixth Amendment to the Federal Constitution and § 11, Art I, of the Oregon Constitution provide that an accused has the right “to have compulsory process for obtaining witnesses in his favor.” § 11, Art I, Oregon Constitution. The Sixth Amendment includes the right to examine the witnesses obtained. Washington v. Texas, 388 US 14, 87 S Ct 1920, 18 L Ed2d 1019 (1967).
Whether the trial court’s order and the statute, OES 135.865, violate these constitutional provisions was not briefed or argued. My research causes me to conclude that if OES 135.865 is interpreted to permit the trial court to refuse to permit witnesses to testify when their names have not been furnished to the state, regardless of whether defense counsel’s failure prejudiced the state, OES 135.865 is probably in contravention of these constitutional provisions.
Constitutional rights can be infringed when there is a compelling governmental interest. United States v. O’Brien, 391 US 367, 376-377, 88 S Ct 1673, 20 L Ed2d 672, rehr den 393 US 900, 89 S Ct 63, 21 L Ed2d 188 (1968) (public burning of defendant’s draft card).
*529However, even if there is a compelling governmental interest, an infringement will be found invalid if the same interest can be served by means which do not infringe upon the constitutional right. See comment, 78 Yale L J 464 (1969).
There is a state interest in criminal discovery, including notifying the state of the names of witnesses which the defense intends to call. There is a state interest in having the names of witnesses furnished beforehand although the failure does not prejudice the state in the particular case. Prejudice is an elusive concept. By requiring the previous disclosure of all witnesses’ names, the issue of prejudice is eliminated and the state’s interest of promoting judicial efficiency is furthered. Likewise, judicial efficiency and the state’s interest are served by requiring attorneys to comply with state laws.
These objectives can be accomplished without imposing the sanction of preventing the witness from testifying. The commentary on the American Bar Standards for Discovery and Procedure Before Trial, § 4.7, p 108, states: “Similarly, the court’s contempt power would seem especially appropriate to willful infractions by lawyers.”