dissenting.
The court is asked in this case to do a simple thing. It is asked to decide whether a statute means what it says. Fleeing before the threat of a constitutional ghost, the majority today declares that the statute does not mean what it says.
The statute we construe today is not arcane. It deals with a familiar aspect of criminal trials, and does so in straightforward terms. The statute, ORS 135.455, provides:
“(1) If the defendant in a criminal action proposes to rely in any way on alibi evidence, the defendant shall, not less than five days before the trial of the cause, file and serve upon the district attorney a written notice of the purpose to offer such evidence, which notice shall state specifically the place or places where the defendant claims to have been at the time or times of the alleged offense together with the name and residence or business address of each witness upon whom the defendant intends to rely for alibi evidence. If the defendant fails to file and serve such notice, the defendant shall not be *542permitted to introduce alibi evidence at the trial of the cause unless the court for good cause orders otherwise.
“(2) As used in this section ‘alibi evidence’ means evidence that the defendant in a criminal action was, at the time of commission of the alleged offense, at a place other than the place where such offense was committed.”
The statute’s language is absolutely clear. The opinion for the majority, however, chooses to claim ambiguity where none exists, purportedly because of incipient constitutional problems with a straightforward reading of the statute. The conclusion of the opinion for the majority is that the statute does not by its terms apply to alibi evidence offered by the defendant’s own testimony. The opinion reaches this conclusion in a three-step process which I present here, for the purposes of clarity, in reverse order from the way it is pronounced by the opinion.
The opinion’s first step is to say that subsection (2) of the statute “does not go beyond defining the substance of the [alibi] statement. It does not address the issue [of] whose testimony is included in the notice requirement.” (306 Or at 541; emphasis in original.) This statement is true, but it does not prove anything about the scope of the statute. The only function of that section is to define “alibi evidence,” not otherwise to define the scope of the statute’s coverage.
It is subsection (1) that defines the scope of the statute by declaring that the defendant cannot use (the statute says, “rely on”) alibi evidence “in any way.” There is no language of limitation as to the source of the evidence — so far as the language of the statute is concerned, the evidence can come either from the defendant or from one of his or her witnesses. Thus, assuming the requisite notice was not given, the trial court’s task in a case such as this is clear: If the proffered evidence is alibi evidence, it cannot be admitted. There may be occasions in which there will be some debate over whether particular evidence falls within or without the definition, but evidence that falls within it cannot be received. In this case, defendant’s proffered testimony is within the definition.
The second step of the opinion for the majority is to bolster its unjustified suggestion that the scope of the statute is an open question, making it possible that the measure was *543not intended to include testimony by the defendant, by referring to a portion of the statute’s legislative history. (306 Or at 539.) That testimony, by then Multnomah County District Attorney George Van Hoomissen, explained that the statute was needed to counter a defendant’s surprise claim, during trial, that he was somewhere else at the time of the crime. He explained,
“This, of course, catches the state and the police officers completely by surprise because they had no advance warning that this defense was going to be raised. The defendant will then produce witnesses to attempt to corroborate his alibi; maybe they are ex-convicts or relatives of the defendant. In any event, there is no opportunity for the state to either verify the alibi or to successfully cross examine the alibi witnesses.”
Minutes, Hearings, Senate Judiciary Committee, May 5,1969, pi.
On the face of it, this testimony speaks to the problem of alibis as a genre. It is clear that the defendant’s own testimony is part and parcel of the problem. However, the majority filters this testimony through a concurring — not a majority — opinion by Justice Lent in State v. Douglas, 292 Or 516, 541, 641 P2d 561 (1982), in an effort to assert that “there are fundamental differences between the state’s needs in meeting the defendant’s own denials and alibi testimony of unexpected witnesses!.]” (306 Or at 539.)
The trouble is that both this assertion, and the Douglas concurring opinion on which it relies, are wrong in claiming any “fundamental differences” (from the state’s point of view) between a lying witness and a lying defendant. The Douglas concurring opinion argued that there is a fundamental difference because the state already knows the identity of the defendant and “must be prepared in any event to counter the defendant’s denial that she was present at the scene of the crime.” State v. Douglas, supra, 292 Or at 541 (concurring opinion). That is disingenuous.
The state has whatever evidence it has identifying the defendant as a perpetrator of the crime. It may have nothing to counter any story by the defendant to the effect that it’s all a case of mistaken identity, she was somewhere else at the time. The dilemma for the state is created by the story. Certainly, the defendant has a better chance of selling the alibi if *544others are called who saw her there. But the difference created by additional witnesses is a difference in degree, rather than a difference in kind, as the opinion for the majority would have it. And, if it is not a difference in kind, it does not support the theory that the legislature meant ORS 135.455 to deal only with witnesses because witnesses were the only problem.
The majority’s final step is to warn darkly that “[t]his [statutory] restriction of defendant’s right to testify would pose a serious problem, if we had to reach it.” (306 Or at 538.) While it does not fully explain the “problem” so that a reader could judge for himself what — if anything — there is to worry about, the opinion for the majority appears to embrace the theoretical conclusions reached by the concurring opinion in State v. Douglas, supra. This court should not now adopt an opinion whose factual premise was overstated and which did not command the support of a majority of this court when its merits were actually before the court.
ORS 135.455 is a statute aimed at orderly trials. Its purpose is to take from the criminal trial process as much of the “game-playing” that once characterized these proceedings as it is possible to take. See also ORS 135.805-.873 (providing for reciprocal discovery in criminal cases). The opinion for the majority puts back the game-playing, at least with respect to defendants. Is that constitutionally necessary? No.
Let us assume that the statute were actually written as the opinion for the majority now wishes to construe it. Further assume that, in a criminal trial, the defendant has given no notice of alibi, because she only intends to testify herself. She takes the stand and does so. This is the first time the state has heard about this story. If it is true, defendant is innocent. The state asks the trial court to recess the trial for a brief period — twenty-four hours, or forty-eight — to look into the alibi. Over defendant’s objection, the recess is granted. Investigation produces witnesses from the place defendant claimed to have been that refute her alibi. She is convicted. On appeal, she asserts that the trial court committed reversible error in granting the recess.
Would a majority of this court hold that to be error? Surely not. It is true that the trial process was interrupted, the case strung out for longer than was desirable, the jury and (possibly) some witnesses discomfited, but the trial judge was *545right to permit the state to make an inquiry. The function of ORS 135.445 is to avoid such delays by letting everyone know ahead of time precisely what is going to be claimed, should defendant elect to take the stand. If the statute’s purpose could be achieved in individual cases by rulings of a trial judge that disrupt the administration of justice, why cannot the legislature provide for a procedure that streamlines and regularizes the process?
The opinion for the majority answers this question by saying, “The issue here is exclusion of defendant’s testimony, not the validity of the notice requirement.” (306 Or at 538.) That is not entirely correct. The sanction — exclusion of evidence for noncompliance — is part and parcel of the statute. We would leave nothing of the statute, as a practical matter, if we were to declare the sanction unconstitutional. But the sanction is not unconstitutional.
The constitutional provision on which the opinion for the majority relies, although it never mentions it, is Oregon Constitution Article I, section 11, which provides:
“In all criminal prosecutions, the accused shall have the right * * * to be heard by himself and counsel * * *.”
This right to be heard, while important, is not so important that it stands above all other rights, rules, laws and practices. For example, none would argue (I hope) that it includes the right of a defendant to be abusive toward the court, opposing counsel, a witness or the jury, or otherwise to disrupt the proceedings. A defendant who engages in this kind of conduct surely waives the right.
While there is no jurisprudence from this state establishing the proposition for which I argue with respect to Article I, section 11, other precedent seems to validate it. For a vivid example, one may look to the law relating to another provision applicable to criminal trials, Oregon Constitution Article I, section 9. While a person may have the right under that provision to be free from unreasonable searches and seizures (and from the use against him in a criminal trial of evidence obtained by such a search or seizure), the person may be required to assert that right in a timely manner prior to trial or he will be deemed to have waived it. ORS 133.673(1); ORS 135.037(1); cf. State v. Madison, 290 Or 573, 576 n 2, 624 *546P2d 599 (1981) (recognizing the principle of timeliness in the statutes). There is nothing in the language of Article I, section 11, that suggests that provision, unlike others, is so absolute that it may not be subject even to reasonable regulations as to its exercises. I would never so hold. To my mind, ORS 135.445 is a reasonable regulation of the trial process that does not compel a defendant to do anything — he is not even required to testify to an alibi after he has given notice of it, and he may not be cross-examined or otherwise held responsible for the notice if he does not testify. That is enough.
The opinion for the majority, having conjured but not analyzed the spectre of Article I, section 11, flees from it by torturing the clear language of ORS 135.445 to find within that statute a limitation on its scope that was not intended by the legislature and is not needed to preserve constitutional rights.
I dissent.