dissenting.
I do not dispute the wisdom of requiring the prosecution to provide discovery of recorded grand jury testimony of its trial witnesses. I most strenuously object, however, to the court requiring it in the face of a statute intended to forbid it. The majority’s disregard of ORS 135.855(l)(c) is based upon a sophistic distinction. Moreover, I believe "the furtherance of justice” to be an objective of judicial reasoning, not a substitute for reasoning.
The majority requires the prosecution to provide to the defendant any recorded grand jury testimony of any critical state’s witness after the direct examination of that witness at trial. Their opinion acknowledges the existence of ORS 135.815 and 135.855, which purport to regulate pretrial discovery and prohibit disclosure of grand jury proceedings, but holds them to be inapplicable because they are operable pretrial and "in the case at bar, we are not concerned with discovery before trial.” Because no statute regulates midtrial discovery, the majority holds that we are free to require disclosure of grand jury testimony "in the furtherance of justice.”
To the contrary, ORS 135.815 lists what must be disclosed and ORS 135.855 requires that all discovery, including that which was previously ordinarily made mid-trial, must be made prior to trial. The timing requirement was not intended to restrict the application of the statute, as the majority holds; it was to make all statutory discovery operative at an earlier time. The history and the words of the statutes demonstrate that the pretrial/midtrial distinction in the proposed opinion is erroneous and that the statutes forbid the role spontaneously propounded in this case.
It is helpful to understand the historical setting. Prior to the adoption of the new Criminal Procedure Code in 1973, there were two nonconstitutional requirements for *597disclosure or discovery in criminal cases, one statutory and one common law.1 Former ORS 133.755 required disclosure of defendant’s statements and of property seized from him. We are not concerned with that rule. The other is pertinent. It is found in our decision in State v. Foster, 242 Or 101 (1965), wherein this court adopted the so-called Jencks rule for Oregon.
In Jencks v. United States, 353 US 657 (1957), the US Supreme Court, acting solely in its supervisory capacity over the federal courts, adopted a rule requiring that the prosecution provide to the defense any available statement of that witness after the direct examination of the witness at trial for the purpose of assisting the defense in cross-examination. It was not a constitutionally based rule. The rule was codified in the Jencks Act, 18 USCA 3500. We adopted the rule in Foster with no explicit rationale except the questionable observations that "the rule ... had been of long standing in both federal and many state courts” and the state has no interest to the contrary. 242 Or at 104.
The court specifically held in Foster, that the rule was to be operable only during trial after the direct examination of the witness, relying upon Wigmore and a California case. It recognized that midtrial operation of the rule was subject to criticism, citing a law review article, but expressly rejected the idea that the rule was to be operable pretrial. 242 Or at 105.
Thereafter, in State ex rel Dooley v. Connall, 257 Or 94 (1970), this court again noted its deliberate decision that discovery of witnesses statements was to be made after direct examination rather than pretrial. We said in dicta:
"The decision in State v. Foster that disclosure of written statements of prosecution witnesses is not required pre-trial is in accord with the weight of appellate decisions, *5987 ALR 3rd, 126-129. But see ABA Project on Minimum Standards for Criminal Justice, supra, pp. 57-58, wherein it is suggested that the better practice would be to have the disclosure made pre-trial to avoid delay and allow adequate preparation.” 257 Or at 101, note 2.
The Supreme Court rejected the ABA approach, but the Criminal Law Revision Commission adopted it. Indeed, all of the proposed and enacted statutes regulating pretrial discovery , including timing, were based upon the ABA Standards Relating to Discovery and Procedure Before Trial (Approved Draft, 1970). See Criminal Law Revision Commission, Proposed Oregon Criminal Procedure Code, Final Draft and Report §§ 321 through 327, Commentary at 185 to 191 (1972). The minutes of the Commission make clear that the Commission was considering the mutual disclosure obligations of the prosecution and defense in criminal proceedings generally. There is not the slightest suggestion that they were confining their considerations to pretrial procedures. The disclosure responsibilities of the parties were formulated. The procedures were made operable pretrial with the objective of encouraging guilty pleas and making trials more efficient.
The things which are to be disclosed by the prosecution to the defense are listed in ORS 135.815. See also ORS 135.825. Things to be disclosed by the defense to the prosecution are listed in ORS 135.835. Both statutes purport to define completely the disclosure obligations of the parties regardless of the time of performance. ORS 135.815, setting forth the obligation of the prosecution provides:
"Except as otherwise provided in ORS 135.855 and 135.873, the district attorney shall disclose to the defendant the following material and information within his possession or control:
"(1) The names and addresses of persons whom he intends to call as witnesses at any state of the trial, together with their relevant written or recorded statements or memoranda of any oral statements of such persons.
"(2) Any written or recorded statements or memoranda of any oral statements made by the defendant, or made by a codefendant if the trial is to be a joint one.
"(3) Any reports or statements of experts, made in connection with the particular case, including results of *599physical or mental examinations and of scientific tests, experiments or comparisons which the district attorney intends to offer in evidence at the trial.
"(4) Any books, papers, documents, photographs or tangible objects:
"(a) Which the district attorney intends to offer in evidence at the trial; or
"(b) Which were obtained from or belong to the defendant.
"(5) If actually known to the district attorney, any record of prior criminal convictions of persons whom the district attorney intends to call as witnesses at the trial and the district attorney shall make a good faith effort to determine if such convictions have occurred.”
The origin of ORS 135.815(1) which requires the district attorney to disclose to defendant the names and statements of his proposed witnesses, is in a draft prepared and explained by then Solicitor General John Osbum. The following excerpts from the minutes are consistent with the Commentary to the ABA Standards and demonstrate that the Commission intended discovery to be made prior to trial as a matter of efficient timing, not to restrict application of the statutes to preliminary proceedings:
"The third major area of discovery in Oregon criminal cases involved cross examination and arose from the case of State v. Foster, 242 Or 101, 407 P2d 901 (1965), where a prosecution witness was called to testify. The court held that if he had made prior statements which had been recorded or reported in any way, the defense was entitled to see those written statements prior to beginning cross examination so they could cross examine the witness on his prior statements. However, prior written statements were not at the present time required to be disclosed pre-trial.
* * * *
"Mr. Osbum said that in looking at various proposals in other state jurisdictions and at the ABA Standards, the justification for pre-trial discovery appeared to be twofold: it enabled the state and the defense to evaluate their cases more properly before going to trial and, secondly, it eliminated unnecessary trials.
«* * * * *
"Mr. Osbum noted that the draft was not intended to cover every problem that might arise but was primarily intended to assist the court and the system in keeping *600things going, shortening trials and eliminating unnecessary trials.
* ifc * *
"Section 2. Disclosure to defendant. Mr. Osbum explained that the provisions of section 2 were essentially taken from the ABA Standards.
Subsection (1). Subsection (1), he said, included relevant written or recorded statements made by witnesses and would make available to the defense reported statements prior to trial which at the present time needed to be given only at the end of the direct examination. * * * "(My emphasis.) Minutes, Oregon Criminal Law Revision Commission, July 24, 1972.
The Commission considered whether discovery was to be performed during trial, immediately prior to trial, after arraignment, or on motion. The result of its deliberations was that the mutual obligation to disclose was to be triggered by the indictment and would continue through the trial. Their proposal was enacted without change as ORS 135.845:
"(1) The obligations to disclose shall be performed as soon as practicable following the filing of an indictment or information in the circuit court or the filing of a complaint charging a misdemeanor or violation of a city ordinance. The court may supervise the exercise of discovery to the extent necessary to ensure that it proceeds properly and expeditiously.
"(2) If, after complying with the provisions of ORS 135.805 to 135.873, a party finds, either before or during trial, additional material or information which is subject to or covered by these provisions, he must promptly notify the other party of the additional material or information.”
There is simply no support to be found anywhere in the words or history of this statute to support the idea that we can disregard ORS 135.815 because this statute was meant to restrict the application of the substantive statute to pretrial proceedings. The majority points to nothing and everything is to the contrary. Discovery is a continuing obligation, commencing prior to trial. All the evidence demonstrates that the intention of the statute and its drafters was to cover the field.
*601The next question is whether recorded grand jury testimony comes within the category of statements of witnesses which are to be provided under the discovery statutes. The statutes and their history demonstrate conclusively that they are not.
ORS 135.815, supra, lists those things which must be disclosed by the prosecution to the defense. See also ORS 135.825. The list in ORS 135.815 of items to be disclosed by the prosecutor is lifted almost verbatim from those listed in Standard 2.1, ABA Standards supra at 13 and 52, with only one exception. The ABA included within its disclosure list:
"(iii) Those portions of grand jury minutes containing testimony of the accused and relevant testimony of persons whom the prosecuting attorney intends to call as witnesses at the hearing or trial.”
The deletion of this provision for grand jury testimony from the Oregon statute was intentional. Commentary, supra at 186. Commission member Blensly (then District Attorney for Yamhill County, now District Judge Donald Blensly) expressed alarm that the omission left the section silent as to recorded grand jury testimony. Although the provision had been deleted from the ABA version, Blensly feared that silence could be interpreted as tacit authorization for discovery of grand jury proceedings. These excerpts are illustrative:
"Mr. Blensly recalled that Mr. Osbum had said earlier that the minutes of grand jury proceedings were not included in section 2. Mr. Osbum stated that under subsection (1) an argument could well be made that if there were written or recorded statements of grand jury proceedings, they were included, particularly under the amended language 'memoranda of any oral statements.’ Mr. Blensly said that if a court reporter transcribed proceedings of the grand juiy, that would certainly be a memoranda [sic] of oral statements and Mr. Osbum agreed. Mr. Blensly was most reluctant to open up grand jury proceedings to a right of discovery. Mr. Osbum said the ÁBA standards specifically included grand jury minutes, but that provision was not contained in this draft. Mr. Blensly contended that the same result was achieved indirectly and objected to making grand jury minutes discoverable.
* * * *
"Mr. Blensly said the thing he feared most was opening the door of the grand jury room. Once it was opened a *602crack, there would be a great many arguments in court to open it all the way, the way California has.” Minutes, Criminal Law Revision Commission, June 2, 1972.
So that there could be no possible misunderstanding, it was decided to make explicit the prohibition against discovery of grand jury testimony, with the exception of the defendant’s own testimony. The result was ORS 135.855(l)(c):
"(1) The following material and information shall not be subject to discovery under ORS 135.805 to 135.873:
* * * *
"(c) Transcripts, recordings or memoranda of testimony of witnesses before the grand jury, except transcripts or recordings of statements made by the defendant.”
As noted above, the majority opinion incorrectly dismisses this statute as inapplicable to discovery during trial because ORS 135.805 to 135.873 are only operable pretrial. ORS 135.845(2), supra, in particular specifies that the statutory discovery obligation is a continuing one "either before or during trial.” The majority’s disregard of the statute is totally unjustified.
Even were there no statute, however, the rationale offered by the majority for its new rule requiring disclosure of recorded grand jury testimony is no more than that it is required "in the furtherance of justice.” Whenever an appellate court relies solely upon a phrase as amorphous as that, red flags should fly and sirens should sound because it is usually a signal that the court is accomplishing judicial will rather than legislative or constitutional intent. Aside from contravening ORS 135.855(l)(c), the phrase is an insufficient foundation for the result in this case for several reasons.
First, the phrase has never to my knowledge been held to allow the court to invent a new rule of practice similar to that which the majority holds that it now requires. I am aware of no such case and the majority cites no such case. Second, the cases the majority relies upon to establish our power to breach the secrecy of the grand jury "in the furtherance of justice,” Gowin v. Heider, 237 Or 266, 286 (1964), State v. Moran, 15 Or 262 (1887), predate ORS 135.855, which was enacted in 1973. The majority *603opinion (page 7, lines 13 through 20) correctly observes that the Commission did not intend to bar the court from requiring disclosure of grand jury proceedings when necessary to further justice, but the Commission most certainly did intend to prohibit any requirement that grand jury statements be routinely provided in the course of trial. It intended exactly the contrary. The phrase gives us no cause to overrule the statutes.
Nor does ORS 132.220 compel or even support the result of the practice created in the proposed opinion. ORS 132.220 allows proof of grand jury testimony by the calling of a grand juror. The statute is designed to deal with competency of evidence and to authorize a grand juror to breach his oath of confidentiality as to the proceedings before the grand jury. It does not create a right to such testimony; it only describes a permissible manner of proof of testimony which the law otherwise allows to be proved. The statute creates no substantive right. Every case relied upon by the majority is consistent with this statement.
The above discussion demonstrates that the legislature intended to regulate by statute the duty of the defense and prosecution for disclosure by listing what must be disclosed and when it must be disclosed. Unless we can cite a constitutional provision which requires invalidation or modification of the statutory scheme or some part of it, we should abide by it.
I concur in the portion of the majority opinion regarding burglary.
This case does not involve constitutional obligations of disclosure. Due process requires that the prosecution provide to the defendant any exculpatory material. Brady v. Maryland, 373 US 83 (1963). The constitutional rule may require disclosure of exculpatory grand jury testimony, State ex rel Johnson v. Roth, 276 Or 883, 887 note 5 (1976), and it must be provided at a time when the exculpatory material is usable by the defense, State ex rel Dooley v. Connall, 257 Or 94, 102 (1970). This case does not involve purportedly exculpatory material, the constitutional rule is not involved, and I mention Brady only to narrow and clarify the issue.