concurring in part; dissenting in part.
I agree with the majority that the trial court did not err when it denied defendant’s motion to suppress the hospital records. I disagree with the majority’s position that there was no violation of ORS 132.580 and that the trial court was without authority to impose a sanction for the state’s purposeful omission of the name of the witness on the indictment through whom the hospital records were introduced in the grand jury hearing.
The parties stipulated that the grand jury considered the hospital records that contained the report of the results of defendant’s blood alcohol test and of defendant’s appearance when he arrived at the hospital. What the record does not disclose is whether the records were introduced into evidence at the hearing through the testimony of a witness or as a certified report under ORS 132.320(2)1. However, the *257prosecutor implied that the records were introduced through a witness. He told the trial court:
“As to the omission of the names * * *, that doesn’t have to be included on the foot of the indictment. That’s not a witness that is going to be called. We believe that’s a statute[sic] exception. That’s apolicy that was explained to me in the office. It wasn’t done by inadvertence.”
On appeal, the state contends that:
“ORS 132.580(1) does not require that an indictment disclose on its face that hospital records were considered by the grand jury, * *
The state has never contended that the hospital reports were introduced under ORS 132.320(2).2 The state’s argument ignores the requirement that evidence like hospital reports must be introduced into evidence through a witness and that the witness through whom the evidence is introduced must be named in the indictment. ORS 132.320(1) says that “the grand jury shall receive no other evidence than such as might be given on the trial of the person charged with the crime in question.” The grand jury could have considered lawfully the hospital records only if they had been introduced after a witness laid a proper foundation for their admissibility under OEC 803(6). ORS 132.580 provides, in relevant part:
“(1) When an indictment is found, the names of the witnesses examined before the grand jury that returned the indictment * * * must be inserted at the foot of the indictment or indorsed thereon, * * *.
“(2) A witness examined before the grand jury whose name is not indorsed on the indictment shall not be permitted to testify at trial without the consent of the defendant unless the court finds that * *
When the state deliberately failed to list the name of the witness through whom the hospital records were introduced into the grand jury evidentiary record, it violated ORS 132.580.
The majority says that, because Coleman, the hospital toxicologist, and Grady, the physician who saw defendant *258when he was brought in, did not testify before the grand jury, “their names were not required to be listed on the indictment. Consequently, there was no violation of ORS 132.580 and no need to impose sanctions.” 120 Or App at 253. The majority is only partially correct. The statute does not require the state to list the names of Coleman and Grady but it does require the state to list the name of the person through whom the records were offered.
Because the violation of ORS 132.580 occurred, the trial court was entitled to impose a sanction on the state. It ruled that a proper sanction was to exclude the testimony of Coleman about the blood alcohol test results and the testimony of Grady about defendant’s appearance when he was admitted into the hospital. ORS 132.580(2) permits a trial court to order that a witness who testified before the grand jury not be allowed to testify at trial. That remedy is impotent under these circumstances. There was no witness named by the state through whom the records had been introduced. Moreover, the court was not authorized by ORS 132.580(2) to exclude the hospital records as an exhibit. It could only exclude the testimony of a witness. Neither Coleman or Grady testified before the grand jury but it is their statements in the hospital record that set out the facts that the state wanted before the grand jury. The issue is whether, in the light of the deliberate violation of ORS 132.580 by the state and these circumstances, the court was authorized to impose some other sanction that would serve as an appropriate deterrent to similar future conduct by the state.
The majority, relying on State v. Stout, 305 Or 34, 749 P2d 1174 (1988), holds that the trial court was limited to the remedy expressly authorized by ORS 132.580(2). It says
“we cannot go behind an indictment to exclude testimony or other evidence from the trial except as specifically allowed by statute. The only statute allowing such exclusion is ORS 132.580(2), and it restricts exclusion to a witness who was examined before the grand jury and whose name is not endorsed on the indictment. Here, the potential witnesses’ statements were disclosed to the grand jury via the hospital records. That may have been inadmissible hearsay, but see OEC 803(6); it was not witnesses examined before the grand jury.” 120 Or App at 254. (Emphasis in original.)
*259State v. Stout, supra, does not support the majority’s position. At issue was whether an indictment must be quashed if it was based in part on hearsay evidence. The court held that an indictment could not be set aside except for statutory grounds which did not include the improper admission of hearsay evidence. Here, the court did not quash the indictment. It imposed a sanction for a statutory violation by excluding the testimony of witnesses, something the statute allowed it to do, had Coleman and Grady testified before the grand jury.
The Stout court also discussed the rule of State v. McDonald, 231 Or 24, 361 P2d 1001 (1961), cert den 370 US 903 (1962). In McDonald, an indictment was returned after the grand jury heard hearsay evidence. The state voluntarily dismissed the indictment. After a second hearing at which no hearsay evidence was presented, the same grand jury returned another indictment for the same crime. Defendant argued that the admission of the hearsay evidence at the first hearing influenced the return of the second indictment. The Supreme Court concluded that the provision of ORS 132.320 which required a grand jury to consider only evidence that would be admissible at trial was “admonitory in character only, not mandatory,” and held that the fact that a grand jury may have been prejudiced by inadmissible hearsay evidence is not a ground for dismissal. 231 Or at 34.
In Stout, the court revisited McDonald. It said:
“We do not reaffirm the McDonald court’s language that compliance with ORS 132.320 is ‘admonitory in character only, not mandatory.’ That may have been only a poorly chosen way to say that noncompliance would not invalidate an indictment, whatever other sanctions might be invoked. It does not mean that prosecutors may use hearsay testimony before grand juries. The unofficial commentary to OEC 101(4)(b) makes plain that this also was the view of those who prepared the Oregon Evidence Code.” 305 Or at 41. (Emphasis supplied.)
It is apparent that the Stout court recognized that other sanctions could be lawfully imposed to carry out the legislature’s purpose in promulgating statutes about what evidence a grand jury could lawfully consider. If the majority *260is correct, there is nothing to prevent the state from thumbing its nose at ORS 132.580 and continuing to perpetuate its policy of not listing the witnesses on the indictment through whom it introduces medical reports or other documentary evidence to a grand jury. Furthermore, under the majority’s reasoning, the state can, with impunity, offer those reports without any witness laying the foundation for their admission in contravention of both ORS 132.320 and ORS 132.580.
A grand jury proceeding is a secret proceeding. By requiring the grand jury to list the names of the witnesses who appear before it on the foot of the indictment, the legislature provided a means by which an accused could be apprised as to the identity of his accusers. It is apparent from the language in ORS 132.580 that the legislature intended to give the trial court the discretion to impose a sanction in the event of a violation of the statute. It also must have been apparent to the trial court that the district attorney had a policy under which the prosecutor had acted and that the practice resulting from that policy would continue unless it put some “teeth” into the consequences for the violation. Because of the way in which the state sought to circumvent the intent of the legislature, the express remedy afforded by ORS 132.580(3) was meaningless. In the light of the mandates of ORS 132.320 and ORS 132.580,1 would hold under the circumstances, that the trial court had implicit authority to sanction the state and that it did not abuse its discretion in imposing an alternative sanction that had meaning. Otherwise, when the issue is whether those statutes can be enforced, the trial court is a “paper tiger.”
For these reasons, I dissent.
Riggs and Rossman, JJ., join in this opinion.ORS 132.320(2) provides:
“A report or a copy of a report made by a physicist, chemist, medical examiner, physician, firearms identification expert, examiner of questioned documents, fingerprint technician, or an expert or technician in some comparable scientific or professional field, concerning the results of an examination, comparison or test performed by such person in connection with a case which is the subject of a grand jury proceeding, shall, when certified by such person as a report made by such person or as a true copy thereof, be received in evidence in the grand jury proceeding.”
Also, the state does not contend that it complied with ORS 132.320(3) which allows the prosecutor to seek leave of the court to allow a witness to appear by affidavit.