* The ultimate aim of the reciprocal discovery statutes is largely congruent with that goal in the sense that such statutes insure that both sides have access to all the facts so that the jury can best determine where the truth lies." State v. Mai , 294 Or. 269, 274, 656 P.2d 315 (1982) (quoting Washington v. Texas , 388 U.S. 14, 19, 87 S Ct 1920, 18 L Ed 2d 1019 (1967) ); see alsoState v. King , 30 Or App 223, 226, 566 P.2d 1204 (1977), rev. den. , 281 Or 1 (1978) (discussing history of discovery); State v. Dyson , 292 Or. 26, 636 P.2d 961 (1981) (same). Chief among the purposes of the rules is "to assure to both the state and the defendant the opportunity, in advance of trial, to be provided with the information required by these statutes so as to enable each party to prepare adequately for trial and to prevent ‘surprise’ at the time of trial."
Wardius v. Oregon, 412 U.S. 470, 472 n 4, 93 S Ct 2208, 37 L Ed 2d 82 (1973); Williams v. Florida, 399 U.S. 78, 83 n 14, 90 S Ct 1893, 26 L Ed 2d 446 (1970). In State v. Wolfe, 273 Or. 518, 525, 542 P.2d 482 (1975), and State v. Dyson, 292 Or. 26, 36 n 9, 636 P.2d 961 (1981), this court observed the existence of the question, but did not decide it. See also State v. Douglas, 292 Or. 516, 524, 641 P.2d 561 (1982) (concurring opinion).
State v. Wolfe, 273 Or. 518, 524, 542 P.2d 482 (1975). This statement was quoted with approval in State v. Dyson, 292 Or. 26, 30, 636 P.2d 961 (1981). In Dyson this court interpreted ORS 135.865 in a situation where disclosure of witnesses' names was required by ORS 135.815. Dyson stressed that although prejudice to a party is an important factor in determining a sanction for noncompliance with discovery requirements, and must be considered by the trial court in determining the sanction to impose, it is not necessary to find prejudice in order to refuse to receive into evidence the material not disclosed.
ORS 135.865; State v. Dyson, 292 Or. 26, 636 P.2d 961 (1981); State v. Wolfe, 273 Or. 518, 542 P.2d 482 (1975).See also State v. Mai, 294 Or. 269, 280, 656 P.2d 315 (1982), holding
Because the defendant's attorney thwarted the court's efforts "to avoid prejudice to the defendant and to the state," the state was prejudiced by its inability to talk to the witnesses in advance. Our holding in Mai limited the language in State v. Wolfe, 273 Or. 518, 524-25, 542 P.2d 482 (1975), and State v. Dyson, 292 Or. 26, 36, 636 P.2d 961 (1981), insofar as the rights of the defendant are concerned. We held that prejudice to the state must be shown before preclusion is appropriate.
Then Solicitor General John Osburn participated in the drafting of what has become ORS 135.815(1). State v. Dyson, 292 Or. 26, 34, 636 P.2d 961 (1981). As he explained to the Oregon Criminal Law Revision Commission:
In order to determine what remedy is appropriate in the exercise of such discretion, the trial courts inquire into the reason for nondisclosure; the nature, relevance and relative importance of the evidence; the interests of the court and of the parties; and the feasibility of a particular remedy under those circumstances. State v Myers, 10 Kan. App.2d 266; 697 P.2d 879 (1985); United States v Coronel, 750 F.2d 1482 (CA 11, 1985); People v Hinton, 122 Ill. App.3d 89; 77 Ill Dec 487; 460 N.E.2d 791 (1984); State v Ricci, 472 A.2d 291 (RI, 1984); State v Dyson, 292 Or. 26; 636 P.2d 961 (1981). Review on appeal then, is as to abuse of discretion.
When evidence in possession of the state is no longer available for discovery pursuant to the discovery statute, the issue is what sanction, if any, should be imposed pursuant to ORS 135.865. In State v. Dyson, 292 Or. 26, 636 P.2d 961 (1981), the court said: "We hold that the trial court must always consider the presence or absence of prejudice in deciding what sanction to impose upon either party under the terms of ORS 135.865, but that the trial court is not necessarily precluded by an absence of prejudice from imposing upon either party the sanction of 'refus(ing) to permit the witness to testify, or refus(ing) to receive in evidence the material not disclosed,' as provided by the terms of that statute.
Defendant contends that the state's failure to comply with the discovery statute (apparently by only belatedly making available Officer Sharp's report) entitled her to a continuance in order to allow her time to prepare fully in the light of the newly discovered report. However, because we find the state's delay did not prejudice the preparation of defendant's case and because we are not persuaded that a continuance was "warranted for the purpose of facilitating justice," State v. Dyson, 292 Or. 26, 36, 636 P.2d 961 (1981), we uphold the trial court's exercise of discretion in refusing to impose any "sanction." In State v. Dyson, supra, the court said that while prejudice must always be considered in deciding what sanction to impose for violation of the discovery statute, its absence does not preclude the imposition of a sanction because "efficient judicial administration" might be frustrated by the violation.
In numerous cases, we have looked to the minutes of its deliberations as well as its published commentary on the revised code as an authoritative source of legislative history for the 1973 Criminal Procedure Code. See, e.g., State v. Conger, 319 Or. 484, 493 n. 4, 878 P.2d 1089 (1994) (considering commentary to code); State v. Hitt, 305 Or. 458, 462, 753 P.2d 415 (1988) (considering both minutes of commission meetings and official commentary to criminal procedure code); State v. Dyson, 292 Or. 26, 33–34, 636 P.2d 961 (1981) (same); State v. Mendacino, 288 Or. 231, 236 n. 4, 603 P.2d 1376 (1980) (relying on minutes of commission meetings). and the statutes governing arraignment and demurrers.