dissent">WARREN, J.,

dissenting.

I think that the majority has decided this case incorrectly under both the Oregon and the United States Constitutions.1 The majority applies United States v. Valenzuela-Bernal, 458 US 858, 102 S Ct 3440, 73 L Ed 2d 1193 (1982), too strictly and misinterprets the case and the policy which it implements. Because I think that the majority opinion does not accord due recognition to defendant’s constitutional rights, I dissent.

United States v. Valenzuela-Bernal, supra,holds that sanctions may be imposed on a government for deporting alien witnesses if the defendant “makes a plausible showing that the testimony of the deported witnesses would have been material and favorable to his defense * * 458 US at 873. The majority concedes that the testimony which defendant asserted Tellez would provide would have been material and favorable to his defense, but concludes that defendant’s showing was not plausible. Here the majority simply misreads Valenzuela-Bernal. The requirement is not that the testimony of the missing witness would be plausible, i.e., credible to the jury. The United States Supreme Court stated:

“Sanctions may be imposed on the Government for deporting witnesses * * * if the criminal defendant makes a plausible showing that the testimony of the deported witnesses would have been material and favorable to his defense, *598in ways not merely cumulative of the testimony of available witnesses. * * *

“As in other cases concerning the loss of material evidence, sanctions will be warranted for deportation of alien witnesses * * * if there is a reasonable likelihood that the testimony could have affected the judgment of the trier of fact. See Giglio v. United States, 405 US 150, 154, 31 L Ed 2d 104, 92 S Ct 763 (1972). In making such a determination, courts should afford some leeway for the fact that the defendant necessarily proffers a description of the material evidence rather than the evidence itself.” 458 US at 873-74.

Thus the rule of Valenzuela-Bernalis that if, from the affidavits of defendant or his attorney it is plausible that the missing witness’ testimony would be material and favorable to the defense in ways not merely cumulative of other testimony, sanctions are appropriate if the testimony could have affected the judgment of the trier of fact. In making that determination, the United States Supreme Court recognized that the defendant’s proffered evidence will be only descriptive of the missing witness’ testimony.

Both defendant and his attorney have submitted sworn affidavits which set forth the facts to which they believed Tellez would testify. These facts were that defendant does not use the seized drugs, that defendant does not sell drugs and that defendant did not own and was not aware of the presence of the drugs and other contraband found in the basement. In addition, they asserted that Tellez would testify that the seized drugs belonged to her and/or her acquaintances and friends. Although, in the form presented in the affidavits, these statements would be subject to objections, it is not unlikely that a witness having knowledge of the facts summarily described in the affidavits would have first hand knowledge of facts supporting the ultimate facts set out in the affidavit.

If Tellez were to have testified as defendant claimed she would, it is more than plausible, it is clear that the testimony would have been both material and favorable to the defense. Although the situation in which a defendant claims that an unavailable witness would have provided exculpatory evidence is ripe for fabrication and abuse, if the unavailability of the witness is due to some act or omission on the part of the state, defendant is entitled to some lenity.

*599The Supreme Court recognized the complexity and unfairness of the situation in which a defendant must demonstrate the favorability and materiality of the testimony of an absent witness whom he did not have an opportunity to interview by requiring only a “plausible” showing of materiality and favorability. It is not incumbent on a defendant to show, as the majority asserts, that the testimony would be credible and that the absent witness’ testimony would be believed and would have affected the outcome. The determination of credibility is for a factfinder, and the testimony proffered in this case is not facially incredible. Defendant must show only that the testimony would have been material and favorable to his defense. In addition, it cannot be said that Tellez’ testimony would only have been cumulative, because she was the only other witness to his arrest and he was privileged not to testify.

The majority characterizes Tellez’ claimed testimony as necessarily self-incriminating and then concludes that it is not plausible to believe that she would waive her rights under the Fifth Amendment in order to exculpate defendant. I believe that, under Valenzuela-Bernal, unless the testimony is facially incredible, the test is not whether her testimony would have been believed but whether her testimony “could have affected the judgment of the trier of fact.” 458 US at 874. (Emphasis supplied.) It is clear that Tellez could testify to several material and favorable facts without incriminating herself in any way. For these reasons, I think that defendant’s showing was sufficient under Valenzuela-Bernal. Because the state released Tellez without advising defendant of its intention to do so, I would affirm the trial court’s dismissal of the case.2

Buttler, Young and Newman, JJ, join in this dissent.

Considering the arguments made before this court and below, and the language of the constitutional provisions, I agree that the analysis under the state and federal constitutions should be the same. Although it is arguable that State v. Gann, 254 Or 549, 565-69, 463 P2d 570 (1969), pronounced a different test, that case is factually distinguishable in that the witnesses which the defendant requested were transferred out of state before the defendant had been appointed counsel. 254 Or at 566.

The majority says that defense counsel represented Tellez as well as defendant. If that is the case, the result the majority reaches is more clearly wrong. Having been appointed to represent Tellez, defense counsel would have no reason to believe that she would be released for voluntary departure without notice to him. Under this scenario, the state did clearly, without any fault chargeable to defendant, put a material witness beyond the reach of the jurisdiction. It is patently unfair to chastise defense counsel, as the majority does, for failure to preserve her testimony.

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