State ex rel. Ott v. Cushing

Oregon Supreme Court

State ex rel. Ott v. Cushing

630 P.2d 861, 291 Or. 355, 1981 Ore. LEXIS 922

CourtOregon Supreme Court

DecidedJuly 8, 1981

DocketSC 27785

StatusPublished

Cited by5 cases

This text of 630 P.2d 861 (State ex rel. Ott v. Cushing) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State ex rel. Ott v. Cushing, 630 P.2d 861, 291 Or. 355, 1981 Ore. LEXIS 922 (Or. 1981).

Pincite

Opinions

PER CURIAM.

Petitioner, charged with murder, gave notice that he intended to invoke the defense of having acted under extreme emotional disturbance and to introduce expert testimony for this defense. ORS 163.115(1)(a), íeS.ISSU).¹ The prosecution obtained an order from the circuit court which directed the defendant (petitioner here) to submit to an examination by a named psychiatrist on behalf of the state. This order originally included a provision directing the defendant to cooperate in all psychiatric tests and to answer all questions asked by the state’s psychiatrist except questions concerning his conduct at or immediately near the time of the commission of the offense. This exception corresponded to the law as set forth in this court’s decisions from Shepard v. Bowe, 250 Or 288, 442 P2d 238 (1968) to State ex rel Johnson v. Woodrich, 279 Or 31, 566 P2d 859 (1977).

Defendant by means of an earlier petition for writ of mandamus in this court challenged certain provisions of the circuit court’s order concerning the role of defendant’s counsel in the psychiatric examination. We directed the circuit court to modify those provisions of the order. State ex rel Ott v. Cushing, 289 Or 705, 617 P2d 610 (1980).

After examining the defendant under the amended order, however, the state’s psychiatrist reported to the prosecutor that he could not render an opinion unless the [358]*358defendant answered questions concerning his conduct, intentions, feelings, and thoughts at the time of the alleged offense, the subjects that were excluded by the court’s order. The court thereupon further amended its order so as to strike this limitation on the psychiatrist’s inquiry. Instead, the order provided:

“(3) IT IS FURTHER ORDERED that Defendant shall answer all questions put to him by Dr. Thompson including questions concerning Defendant’s acts, conduct, feelings, intentions and thoughts at or near the time of the alleged comission of the offense;...”

Defendant petitioned for an alternative writ of mandamus, which we allowed, and the state moved to dismiss.

The new paragraph (3) of the circuit court’s order concededly was contrary to the law as stated in this court’s decisions cited above. The state, on behalf of the circuit judge as defendant in this mandamus proceeding, argues against the law set forth in those decisions. It asks the court to hold that a judicial order obliging a defendant to explain his acts, thoughts, and feelings during the course of events that is charged against him as a crime nevertheless does not compel him to testify against himself, contrary to Oregon Constitution, Art I, § 12, or to be a witness against himself, contrary to the federal fifth amendment. We decline to do so.

The rule of Shepard v. Bowe, supra, has not maintained unanimous support in this court. See State ex rel Johnson v. Richardson, 276 Or 325, 331, 327-329, 555 P2d 202, 205 (1976) (Howell, J., concurring); State ex rel Johnson v. Woodrich, supra, 279 Or at 38, 566 P2d 562 (1977) (Linde, J., specially concurring) and id. at 41, 566 P2d 863 (Howell, J., dissenting); State ex rel Ott v. Cushing, supra, 289 Or at 715, 617 P2d at 616 (Tanzer, J., concurring). It has, however, survived as the law in this state. Modifications or alternatives that have been suggested in individual opinions have not been pursued by the Legislative Assembly. Even if we were inclined further to elaborate on or change the rule, we would not think it appropriate to do so when in the very case before us, in affirming another part of the circuit court’s order, we asserted that the rule' of Shepard v. Bowe “represented the proper balance between protecting a defendant from self-incrimination and ensuring that the state has sufficient information from which to [359]*359properly diagnose defendant’s mental condition.” 289 Or at 702, 617 P2d at 615. This did not invite the circuit court to contravene that rule.

The state’s motion to dismiss the petition for mandamus is denied; peremptory writ to issue.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM.

Petitioner, charged with murder, gave notice that he intended to invoke the defense of having acted under extreme emotional disturbance and to introduce expert testimony for this defense. ORS 163.115(1)(a), íeS.ISSU).¹ The prosecution obtained an order from the circuit court which directed the defendant (petitioner here) to submit to an examination by a named psychiatrist on behalf of the state. This order originally included a provision directing the defendant to cooperate in all psychiatric tests and to answer all questions asked by the state’s psychiatrist except questions concerning his conduct at or immediately near the time of the commission of the offense. This exception corresponded to the law as set forth in this court’s decisions from Shepard v. Bowe, 250 Or 288, 442 P2d 238 (1968) to State ex rel Johnson v. Woodrich, 279 Or 31, 566 P2d 859 (1977).

Defendant by means of an earlier petition for writ of mandamus in this court challenged certain provisions of the circuit court’s order concerning the role of defendant’s counsel in the psychiatric examination. We directed the circuit court to modify those provisions of the order. State ex rel Ott v. Cushing, 289 Or 705, 617 P2d 610 (1980).

After examining the defendant under the amended order, however, the state’s psychiatrist reported to the prosecutor that he could not render an opinion unless the [358]*358defendant answered questions concerning his conduct, intentions, feelings, and thoughts at the time of the alleged offense, the subjects that were excluded by the court’s order. The court thereupon further amended its order so as to strike this limitation on the psychiatrist’s inquiry. Instead, the order provided:

“(3) IT IS FURTHER ORDERED that Defendant shall answer all questions put to him by Dr. Thompson including questions concerning Defendant’s acts, conduct, feelings, intentions and thoughts at or near the time of the alleged comission of the offense;...”

Defendant petitioned for an alternative writ of mandamus, which we allowed, and the state moved to dismiss.

The new paragraph (3) of the circuit court’s order concededly was contrary to the law as stated in this court’s decisions cited above. The state, on behalf of the circuit judge as defendant in this mandamus proceeding, argues against the law set forth in those decisions. It asks the court to hold that a judicial order obliging a defendant to explain his acts, thoughts, and feelings during the course of events that is charged against him as a crime nevertheless does not compel him to testify against himself, contrary to Oregon Constitution, Art I, § 12, or to be a witness against himself, contrary to the federal fifth amendment. We decline to do so.

The rule of Shepard v. Bowe, supra, has not maintained unanimous support in this court. See State ex rel Johnson v. Richardson, 276 Or 325, 331, 327-329, 555 P2d 202, 205 (1976) (Howell, J., concurring); State ex rel Johnson v. Woodrich, supra, 279 Or at 38, 566 P2d 562 (1977) (Linde, J., specially concurring) and id. at 41, 566 P2d 863 (Howell, J., dissenting); State ex rel Ott v. Cushing, supra, 289 Or at 715, 617 P2d at 616 (Tanzer, J., concurring). It has, however, survived as the law in this state. Modifications or alternatives that have been suggested in individual opinions have not been pursued by the Legislative Assembly. Even if we were inclined further to elaborate on or change the rule, we would not think it appropriate to do so when in the very case before us, in affirming another part of the circuit court’s order, we asserted that the rule' of Shepard v. Bowe “represented the proper balance between protecting a defendant from self-incrimination and ensuring that the state has sufficient information from which to [359]*359properly diagnose defendant’s mental condition.” 289 Or at 702, 617 P2d at 615. This did not invite the circuit court to contravene that rule.

The state’s motion to dismiss the petition for mandamus is denied; peremptory writ to issue.

Cite This Page — Counsel Stack

Bluebook (online)

630 P.2d 861, 291 Or. 355, 1981 Ore. LEXIS 922, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-ott-v-cushing-or-1981.

Opinions

Related

Cite This Page — Counsel Stack