discussing the state’s right to a psychiatric examination of a defendant seeking to plead not guilty by reason of insanity or to introduce expert testimony on EED: “It was neither our intent nor that of the legislature to attempt to undercut the constitutional privilege against self-incrimination. It was our intent to make the best use of modern psychiatric expertise consistent with the privilege as we understand it.” (Footnote omitted.)
How later courts described this case
- discussing the state’s right to a psychiatric examination of a defendant seeking to plead not guilty by reason of insanity or to introduce expert testimony on EED: “It was neither our intent nor that of the legislature to attempt to undercut the constitutional privilege against self-incrimination. It was our intent to make the best use of modern psychiatric expertise consistent with the privilege as we understand it.” (Footnote omitted.)
Written by the judges who cited it.
The opinion
LINDE, J.,
specially concurring.
The court reaffirms that a defendant who offers a defense of mental disease or defect, ORS 161.295-161.305, cannot be compelled in a psychiatric examination under ORS 161.315 to answer questions "concerning his conduct relating to the offense charged.” Shepard v. Bowe, 250 Or 288, 290 , 442 P2d 238 (1968). This ruling is sufficient to dispose of the present case, and I concur. However, this exception from a defendant’s obligation to answer questions does not exhaust the defendant’s privilege not to be compelled to testify against himself, Or. Const, art. I, § 12. j
The quoted exception is designed to prevent that an accused will be compelled in a mental examination to disclose evidence bearing on his commission of acts which he denies. That is a troubling part of the problem. But beyond this, when the state has made a defendant’s criminal responsibility hinge on his frame of mind as well as on his acts, his privilege hot to testify against himself must extend to the one element of guilt as to the other. 1
*39 The state has made a person’s mental condition a crucial factor in the existence or extent of his culpability. If, as I assume, he could not be compelled to answer questions about his state of mind in court, he equally cannot be compelled to answer them out of court. His statements to the state’s examiner about that mental condition may become the basis of testimony against him on that crucial factor in a criminal trial. No one can be compelled to give the prosecution statements that may be used against himself, even if this makes it more difficult for the prosecution to contradict evidence in his favor. The United States Supreme Court has recently reiterated its consistent rejection of arguments that one may be compelled to incriminate oneself when this is required by a governmental need. See Lefkowitz v. Cunningham, — US -, 97 S Ct 2132 , 53 L Ed 2d, 1, 8-9 (1977) and cases there cited.
The court has based its prior rulings that a defendant must submit to some form of mental examination on the premise that his privilege against self-incrimination "does not extend to the exclusion of his body or of his mental condition as evidence . . . even when such evidence is obtained by compulsion”, State v. Phillips, 245 Or 466, 476 , 422 P2d 670 (1967), quoting State v. Grayson, 239 NC 453, 80 SE2d 387, 390 (1954); "the idea is not that there is no 'compulsion’ but that there is no 'testimony’ ”, State ex rel Johnson v. Dale, 277 Or 359, 364 , 560 P2d 650 (1977). The theory is that the examining expert elicits defendant’s statements only for their bearing on his mental condition, irrespective of any bearing their content, true or false, may have on the events of the alleged *40 crime. Taking stock of defendant’s mind, in this view, is like taking his fingerprints, his blood, perhaps an electroencephalogram. Of this theory that the statements of the accused to the psychiatrist are not used in a "testimonial” manner, a leading text on the law of evidence remarks that it "stretches the rationale for the 'testimonial’ limitation to its maximum.” 2
It may well be that the state of a man’s mind is as much a fact as the state of his digestion, 3 but an accused could not, consistent with the privilege, be made to testify about his digestion. When the issue is what fed a defendant’s mind or emotions, perhaps a distinction can be found between generalized psychometric and diagnostic tests that could be considered analogous to physical examinations, to which the accused can be ordered to submit, and more individualized inquiries designed to elicit the accused’s own testimony as to thoughts, memories, feelings, or fantasies bearing on that issue, which would be subject to *41 his privilege not to answer. Perhaps such a distinction would upon scrutiny prove illusory. In any event, a line between "testimonial” and "non-testimonial” mental examination of an accused excludes more than the questions about his conduct relating to the alleged offense that are excluded under Shepard v. Bowe. How much more must await a future case.
This is so irrespective of the burden of proof on the issue of mental incapacity. See Patterson v. New York, — US-, 97 S Ct 2319 , 53 L Ed 2d *39 281, 289 (1977). Nor does this case present the question whether some sort of insanity defense is required and cannot constitutionally be conditioned on cooperation in a mental examination, or the implications for the privilege against self-incrimination if the issue of psychic responsibility were removed from the adversary trial of guilt and relegated to a separate dispositional procedure.
Cleary et al, McCormick on Evidence 287 (2d ed 1972). The authors continue:
. . . Arguably the statements sought from the accused are not sought for their substantive truth but rather as 'Verbal acts” permitting a skilled clinician to draw from them inferences regarding the accused’s state of mind. This is consistent with the "phenomenological” clinical approach of many psychological examiners in which the subject’s perceptions rather than the objective accuracy of those perceptions are the working matter of the inquiry. Yet whether this analysis can pass muster is doubtful. Although this use may be made of the statements, substantive reliance may well also be placed upon the accused’s own statements regarding his conscious thoughts at the time of the acts. Moreover, while a sophisticated clinical worker may adopt a phenomenological approach, whether a lay jury, even if carefully instructed, could be relied upon to consider the statements in this manner, is open to serious question.
Against too simple an application of this court’s "nontestimonial” premise in Phillips , they quote Chief Judge Bazelon’s observation in Thornton v. Corcoran, 407 F2d 695, 700 (1969): i
"[The argument that no evidence of a testimonal nature is extracted] can hardly do service in the context of a psychiatric examination . . . where the words of the accused are critically important in determining his mental condition.”
Id., note 83.
Bowen, L. J., in Eddington v. Fitzmaurice, 29 L.R., Ch.Div. 459, 483 (1884).