Shepard v. Bowe
| Court | Supreme Court of Oregon |
| Writing for the Court | Before PERRY; DENECKE; PERRY |
| Citation | 250 Or. 288,442 P.2d 238 |
| Parties | Bennie Cecil SHEPARD, Plaintiff, v. Honorable Samuel M. BOWE, Judge of the Circuit Court of the State of Oregon for Jusephine County, Defendant. . Argued and Submitted on Defendant's Demurrer to Alternative Writ |
| Decision Date | 03 January 1968 |
Page 238
v.
Honorable Samuel M. BOWE, Judge of the Circuit Court of the
State of Oregon for Jusephine County, Defendant.
Writ Jan. 3, 1968.
Decided June 14, 1968.
Donald F. Myrick, Grants Pass, argued the cause for plaintiff. With him on the brief was Donald C. Williams, Grants Pass.
Michael S. Killoran, Dist. Atty., Grants Pass, argued the cause for defendant. With him on the briefs was Robert M. Burrows, Deputy Dist. Atty., Grants Pass.
Before PERRY, C.J., and McALLISTER, SLOAN, O'CONNELL, GOODWIN, DENECKE and HOLMAN, JJ.
DENECKE, Justice.
The issue is the extent of the pretrial psychiatric [250 Or. 289] examination that a trial court
Page 239
can require of a defendant who has pleaded not guilty by reason of insanity. The criminal charge was failing to stop at the scene of an accident resulting in an injury.The District Attorney moved for an order requiring the defendant to be examined by a psychiatrist selected by the court or the state. The court so ordered. In response to a motion for clarification of the court's order the court further ordered:
'IT IS THEREFORE ORDERED:
'1. That Defendant answer questions concerning his accident or conduct at or immediately near the time of the commission of the alleged crime;
'2. Counsel for the Defendant is ordered not to advise the Defendant to refuse to answer questions concerning his accident or conduct at or immediately near the time of the commission of the alleged crime;
'3. Counsel is ordered not to interfere by advising Defendant not to answer questions the answer to which might tend to incriminate him; and,
'* * *.'
In response to defendant's petition, this court, exercising original jurisdiction, issued an alternative writ of mandamus, ordering the defendant trial court to show cause why it should not vacate its order. The trial judge demurred and answered, admitting all the facts alleged in the alternative writ.
In State v. Phillips, 245 Or. 466, 422 P.2d 670 (1967), we held that the state has a right to have a mental examination of a defendant who pleads not guilty by reason of insanity. We reasoned that this did not violate the federal and state constitutional prohibition of compulsory self-incrimination because it did not involve testimonial compulsion. In State v. Phillips, [250 Or. 290] supra, 245 Or. 466, 422, P.2d 670, the trial court's order provided that the defendant could not be questioned concerning his acts or conduct at or immediately near the scene of the crime and required that his attorney be permitted to be present. These restrictions were not in issue on the appeal and we did not decide whether they were necessary.
In State v. Smith, Or., 426 P.2d 463 (1967), we expressly did not decide whether State v. Phillips, supra, 245 Or. 466, 422 P.2d 670, requires that counsel be present when the psychiatric examination is made.
The issue is now squarely presented to us: Does the court have the authority to require that the defendant, at a pretrial mental examination, answer questions concerning his conduct relating to the offense charged, and can the court order defendant's counsel not to advise his client to refuse to answer questions upon the ground that they might incriminate him?
It is apparent that the defendant's answers to the psychiatrist's questions might be incriminating upon any of the issues in the trial, including the issue whether the defendant committed the act charged. 1
Other jurisdictions have solved this problem in varying ways.
In State v. Whitlow, 45 N.J. 3, 210 A.2d 763 (1965), the trial court ordered the defendant to answer all questions put to him by the psychiatrist in an examination ordered by the court upon the motion of the state. It further denied defendant's attorney's request to be present at the examination and forbade disclosure of the report of the examination until further...
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State v. Mills
...(1983); see also State v. Cloman, 254 Or. 1, 456 P.2d 67 (1969) cited in State v. Caraher, 293 Or. at 759, 653 P.2d 942; Shepard v. Bowe, 250 Or. 288, 442 P.2d 238 (1968) cited in State v. Soriano, supra, 68 Or.App. at 660, 684 P.2d 5 In this court's opinion in State v. Haas, we had also fo......
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State, ex rel. Russell v. Jones
...in this respect from a compulsory psychiatric examination under ORS 161.315 for evidence of mental disease or defect. Shepard v. Bowe, 250 Or. 288, 442 P.2d 238 (1968), and its progeny have no application to this 1 Because I conclude that the defendant must prevail under Article I, section ......
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State v. Jackson, 15419
...648 (1969-70). 2 Estelle v. Smith, supra; Houston v. State, Alaska, 602 P.2d 784 (1979); State v. Corbin, supra; Shepard v. Bowe, 250 Or. 288, 442 P.2d 238 3 Jackson's trial predated the effective date of West Virginia Rules of Criminal Procedure. Those rules cover the situation before us t......
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State v. Fish
...where individual refused to answer questions under oath), or where an individual is required to act by court order, see Shepard v. Bowe, 250 Or. 288, 293, 442 P.2d 238 (1968) (right against self-incrimination applied in context of court-ordered psychiatric examination). Another example of c......