State ex rel. Johnson v. Woodrich

• Decision Date: 11 July 1977
• Citation: 566 P.2d 859,279 Or. 31
• Parties: STATE of Oregon ex rel. Lee JOHNSON, Attorney General, Plaintiff-Relator, v. Charles S. WOODRICH, Judge of the Circuit Court of the State of Oregon for the County of Douglas, Defendant.
• Court: Oregon Supreme Court

Page 859

566 P.2d 859

279 Or. 31

STATE of Oregon ex rel. Lee JOHNSON, Attorney General, Plaintiff-Relator, v. Charles S. WOODRICH, Judge of the Circuit Court of the State

of Oregon for the County of Douglas, Defendant.

Supreme Court of Oregon, In Banc.

Argued and Submitted May 5, 1977.

Decided July 11, 1977.

W. Michael Gillette, Sol. Gen., Salem, argued the cause for plaintiff-relator. With him on the brief were James A. Redden, Atty. Gen. and Catherine Allan, Asst. Atty. Gen., Salem.

Richard A. Cremer, Asst. Public Defender, Roseburg, argued the cause and filed a brief for defendant.

J. Pat Horton, Dist. Atty., Darryl L. Larson, Deputy Dist. Atty., and David Nissman, Law Clerk, Lane County, filed a brief amicus curiae for plaintiff-relator.

Gary D. Babcock, Public Defender, and Robert C. Cannon, Deputy Public Defender, Salem, filed a brief amicus curiae for defendant.

HOLMAN, Justice.

In this mandamus proceeding we are asked to reconsider our decision in Shepard v. Bowe, 250 Or. 288, 442 P.2d 238 (1968). Defendant circuit judge relied on Shepard in refusing to allow state psychiatrists to question a criminal defendant concerning acts or conduct at or immediately near the time of the commission of the alleged crimes. The state contends that since the criminal defendant intends to raise the defense of mental disease or defect and to introduce evidence of extreme emotional disturbance, defendant circuit judge has the duty to order a complete psychiatric examination.

Singleton, the criminal defendant, is charged with murder and felony murder. He has given notice of his intent to raise the defense of mental disease or defect and to introduce evidence of extreme emotional disturbance. ¹ The state has moved for an order allowing state psychiatrists to examine Singleton and to question him concerning his acts and conduct at or near the time of the commission of the alleged crimes. After hearing testimony from two psychiatrists on the value of unlimited psychiatric examination, defendant circuit judge ordered that state psychiatrists be allowed to examine Singleton, but that, in accordance with our decision in Shepard, they not be allowed to question him concerning his acts and conduct at or near the time of the commission of the alleged crimes.

Our decision in Shepard was part of a continuing attempt to make good use of psychiatric expertise in criminal trials without compromising the privilege against self-incrimination embodied in the Oregon and United States Constitutions. ² Our decision was that, although a criminal defendant raising a psychiatric defense may be required to submit to examination by state psychiatrists, such a defendant may not be required to answer questions concerning his or her conduct relating to the offense charged. Recently, in State ex rel Johnson v. Richardson, 276 Or. 325, 555 P.2d 202 (1976), we indicated that we had some doubt as to whether our decision in Shepard represented the best possible accommodation of the use of psychiatric expertise to the constitutional privilege. It is this doubt which we shall now resolve.

The presence of psychiatric issues and psychiatric testimony is not a novelty in the law. English law concerning the insanity defense had its roots in the thirteenth century. Brand, The Insanity Defense, 9 Or.L.Rev. 309 (1930). The defense was clearly defined in England in 1843 by M'Naghten's Case, 8 Eng.Rep. 718, and established in Oregon in 1884 by State of Oregon v. Murray, 11 Or. 413, 5 P. 55. Although psychiatry had hardly emerged as a science, one of the questions in M'Naghten's Case concerned testimony given by "a medical man conversant with the disease of insanity." In 1910 this court held for the first time that

"(a) qualified physician may be allowed by a court to assert an opinion from an examination made of a defendant subsequent to the commission of a crime as to whether or not the person accused thereof was sane or insane at the time the offense was perpetrated. * * *." State v. Roselair, 57 Or. 8, 14, 109 P. 865, 868.

It was only in 1967 that we held that the state has a right to at least a limited psychiatric examination of a defendant who pleads not guilty by reason of insanity. State v. Phillips, 245 Or. 466, 422 P.2d 670. In 1971 our holding was codified and extended to apply to cases in which a defendant intends to introduce expert testimony on diminished or partial responsibility and/or extreme emotional disturbance. ORS 161.309, 161.315, 163.135. It was neither our intent nor that of the legislature ³ 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.

Recently, in State ex rel. Johnson v. Dale, 277 Or. 359, 560 P.2d 650 (1977), we summarized the cases in which we have considered the relationship of the privilege to compulsory psychiatric examination. The state does not contend, and we do not believe, that our basic perception of the self-incrimination problem is incorrect. In our decision in Shepard we attempted to solve the problem by limiting the scope of compulsory psychiatric examination. The parties to the present case point out that we could attempt to solve this problem alternatively by imposing limitations on the trier of fact, on the prosecution, or on the state psychiatrists, without limiting the scope of compulsory psychiatric examination. We shall examine each of these alternative solutions.

The first alternative solution is to permit unlimited questioning and unlimited testimony by state psychiatrists but to instruct the trier of fact to consider the testimony only on the issue of mental disease or defect and not otherwise on the issue of guilt. We found this solution inadequate in Shepard and we so find it now. We doubt that a judge or juror in this situation could follow such an instruction.

The second alternative solution is to permit unlimited questioning by state psychiatrists but to prohibit the prosecution from using the statements elicited as a basis for testimony which bears upon the elements of the alleged offense. The prosecution would also be prohibited from using the statements as leads to evidence or as aids in otherwise strengthening its case. The state contends that pretrial discovery will permit a criminal defendant to spot and to stop any attempt by the prosecution to make such use of the statements. We are not convinced that this would be so. The temptation on the part of prosecutors to develop their cases would be almost irresistible. It is unrealistic to give a dog a bone and to expect him not to chew on it. We are not inclined to compel criminal defendants to cooperate fully with state psychiatrists in reliance upon the ability of defendants to detect every instance of improper use of the information so gained.

The third alternative solution is to permit unlimited questioning by state psychiatrists for the purpose of forming their opinions but to forbid their disclosing to anyone, either before or during trial, any inculpatory statements which are elicited. We find this solution unsatisfactory. The opinion of an expert witness is of little value to anyone in a court proceeding when it is separated from the facts on which it is based. This solution would therefore do little to advance the good use of psychiatric expertise in criminal trials. In fact, it could actually interfere with the good use of such expertise. One of the psychiatrists who testified in the trial court stated that he would be fearful of unwittingly revealing inculpatory statements in attempting to support or defend his opinion and that the necessity of self-censorship would probably compromise him as an effective witness. We believe, and we think most psychiatrists would agree, that it is undesirable to place on psychiatrists the burden of protecting criminal defendants from substantial risks of self-incrimination.

In addition, we are aware that certain expert witnesses are regularly hired by the state to perform pretrial psychiatric examinations. This procedure creates relationships which, if the suggested solution was adopted, would make us apprehensive and uneasy. The existence of these relationships led us to make the following statement in Shepard v. Bowe, supra, 250 Or. at 293-94, 442 P.2d at 241:

" * * * If the trial court ordered that statements made by the defendant to the psychiatrist could not be revealed to the state or to any other person except upon court order, we are of the opinion that under certain circumstances there is more than a remote chance that such statements would become known to others in addition to the trial court."

The final alternative solution is to bifurcate the trial. The criminal defendant would be tried first on the elements of the alleged offense and subsequently, after psychiatric examination, on the issue of mental disease or defect. We stated in State ex rel. Johnson v. Dale, supra, that, given our decision in Shepard, such bifurcation is not constitutionally required. If we overruled our decision in Shepard, we would have to reconsider this question in a proper case. We also stated, however, and still maintain, that bifurcated trials are to be avoided as a matter of efficient judicial administration.

In sum, we find no alternative solution to be as satisfactory as the solution provided by our decision in Shepard v. Bowe, supra. That solution is subject to criticism, of course. The two psychiatrists who testified in the trial court stated that the limitation on the scope of compulsory psychiatric examination makes it more difficult (but not impossible) for them to form psychiatric opinions in some cases. ⁴ We were aware of this difficulty when we reached our decision in Shepard ; but we recognized the necessity to comply with constitutional principles, and we could not conscientiously say that they would be satisfied by any...