I dissent. I would find the defendant, by virtue of the fact that he is a judge of the court of general jurisdiction, had inherent power to issue the order in question. I would further find that the order could only be set aside for an abuse of discretion. The alternative writ should be dismissed because mandamus will not lie to control judicial discretion. Johnson v. Craddock et al, 228 Or 308, 365 P2d 89 (1961); State ex rel. Ricco v. Biggs, 198 Or 413, 255 P2d 1055 (1953).
At an omnibus hearing before Judge Roth an attorney for a defendant who was accused of the crime of sexual abuse explained that the case basically rested on the eight year old victim’s story as against that of his client. He *642further explained that the Children’s Services Division, which had custody, refused to allow him to talk to the child. The attorney then made the following motion:
«* * * j>m asking the Court for an order allowing me and/or my investigator, under whatever conditions the Court may impose, to speak with this child.”
Judge Roth then listened to the testimony of the caseworker for the Children’s Services Division. At the conclusion of the testimony he said:
“I don’t see any additional harm if the district attorney is present, you’re present [defendant’s attorney], and Ms. Conrad [caseworker] is present, * * * and if the child is reluctant to talk, just cut her off like that and if the child is willing to talk, well and good, so you have some chance to evaluate the child, because you’re going to have to defend this man and I think you should have an opportunity — just an informal meeting.”
Thereafter, the order in question was issued. In relevant part it reads:
“IT IS ORDERED that defendant’s motion be and the same is hereby allowed.
“IT IS FURTHER ORDERED that the Children’s Protective Service make the child, Angela * * *, available for and submit to an interview by defense counsel and his investigator, said interview to be conducted in the presence of Cynthia Conrad of Children’s Protective Services and Deputy District Attorney Leslie K. Baker.”
I would find that the order is ambiguous and that Judge Roth’s intention was that the child should be required to appear for an interview but not required to answer questions. Contrary to the State’s contention, this is not a case where a witness is compelled to speak to defense counsel prior to trial. State v. York, 291 Or 535, 624 P2d 106 (1981). We do not reach the issue of whether the Children’s Services Division stands in loco parentis and has the authority to refuse to allow the child to answer questions.
There is a line of cases that hold a defendant has the right to interview witnesses held in public custody under the terms and conditions set out by the trial judge. See Annotation, Accused’s Right to Interview Witness held in Public Custody, 14 ALR3d 652 (1967); 21A Am Jur 2d 528 Criminal Law § 999 (1981).
*643In Baker v. State, 47 So 2d 728 (Fla 1950) the defendant was convicted of a crime against nature involving girls who were 15 and 13 years of age. Prior to trial the girls were in the custody of the juvenile officer. The only question on appeal was whether the trial court abused its discretion in refusing to allow defendant’s attorney permission to interview the girls except in the presence of the juvenile officer. The Florida Supreme Court held there was no abuse of discretion.
In Clarence Holladay v. The State, 130 Tex Crim 591, 95 SW2d 119 (1936) the defendant was convicted of incest involving his 14 year old and 12 year old daughters. The Texas Court of Criminal Appeals held that the trial court did not abuse its discretion in refusing to allow an interview of the daughters by defendant’s attorney out of the presence of the matron of the maternity home where the girls were confined.
In many of the cases cited in the ALR annotation the witnesses sought to be interviewed were in jail for one reason or another. Obviously, there is a vast difference in custody by the Children’s Services Division and jailhouse custody, but the reasons for allowing the interviews are the same in both situations. VI Wigmore on Evidence § 1850, 512-513 (Chadbourn Revision 1976) explains:
“On the one hand, it is fair to an accused to supply to him advance notice of the testimony that is to be used; on the other hand, it contains risks of tampering successfully with that testimony to permit an unscrupulous accused to confer with the witness. The practical solution is to leave the matter in the hands of the trial court, who could permit the consultation under proper safeguards: * *
Wigmore then goes on to quote extensively from Leahy v. The State, 111 Tex. Crim. 570, 587, 13 SW2d 874, 882 (1929) which quotes from State v. Papa, 32 RI 453, 459, 80 A 12 (1911). A part of that quote is as follows:
“The attorney for the defendant not only had the right, but it was his plain duty towards his client, to fully investigate the case and to interview and examine as many as possible of the eye-witnesses to the assault in question, together with any other persons who might be able to assist him in ascertaining the truth concerning the event in controversy. Witnesses are not parties and should not be *644partisans; they do not belong to either side of the controversy; they may be summoned by one or the other or both, but are not retained by either. It would be a most unfortunate condition of affairs if a party to a suit, civil or criminal, should be permitted to monopolize the sources of evidence applicable to the case to use or not as might be deemed most advantageous. .. The defendant, therefore, has the constitutional right to have compulsory process for obtaining witnesses to testify in his behalf, he has also the right either personally or by attorney to ascertain what their testimony will be.”
In none of the cases that I have found was the authority of the trial judge to allow the interview questioned. All of the cases seem to turn upon whether or not the trial judge abused his discretion in that particular situation.1
The majority opinion says that there is no statutory authority to issue orders concerning conduct outside of the court by persons who are not a party to the case. I would find that the trial judge’s authority to allow the interview stems from two sources: (1) the case law from other jurisdictions, and (2) the inherent power of the court. The inherent power of the trial court reaches beyond the “keeping of time” and asking witnesses “to speak up.”2
In State v. York, supra, we implied that the trial court had authority to order an interview when at page 543 we said: “For example, if prior to trial the defense attorney becomes aware of improper prosecutorial efforts to prevent interviewing of witnesses, assistance of the court could be requested.”
20 Am Jur 2d 440 Courts § 79 (1965).