concurring.
The majority holds that OEC 615 “ ‘does not authorize exclusion’ of witnesses who fall into one of [its] four categories of exceptions.” 120 Or App at 494-95. Then, at footnote 3, it says ‘ ‘ [w] e express no opinion whether any other rule of law authorizes a court to exclude a witness who falls wdthin one of the exceptions listed in OEC 615.” It concludes that, because the state’s designated representative was a city police officer, not an officer or employee of the state, the trial court was not bound by OEC 615 to permit the witness to sit at counsel table as the state’s representative.
Although I agree with the majority that the trial court mistakenly believed it had no discretion to exclude the city police officer as a representative of the state, I do so for a different reason. OEC 615 does not mandate that a trial court allow the state to preempt the court’s obligation to ensure that a fair trial occurs. It is not uncommon in criminal trial proceedings that cross-examination of the state’s witnesses is crucial to a fair presentation of a defendant’s case. Often, for cross-examination of a prosecution witness to be effective, it requires that the witness not have the benefit of hearing other testimony.
At the heart of OEC 615 is the proposition that, in the pursuit of truth, the trial judge must retain the ability to exclude witnesses whose credibility is crucial to the determination to be made by the fact finder from the courtroom *497except when testifying. The importance of that ability is magnified because the defendant’s liberty interest is at stake. The legislature intended OEC 615 as an aid to the trial court to ensure a fair trial, not as an inhibition.1
Because we are required to interpret OEC 615 to carry out the intent of the legislature, ORS 174.020, we should construe the rule to mean that the trial court retains the discretion to veto the state’s designated representative. The result would be that the state could always have a representative present but defendant’s right to a fair trial would also be preserved. Otherwise, trial judges are deprived of their role as arbitrators of justice.
Richardson, C. J., and Riggs, J., join in this concurring opinion.For instance, the trial court can exclude witnesses on the request of a party or on its own motion under OEC 615.