concurring.
Because the state submitted the challenged order and has no objection to it, this case presents no occasion to re-examine the holdings, commencing with Shepard v. Bowe, 250 Or 288, 442 P2d 238 (1968) upon which the order is based. Accordingly, I concur in the majority opinion.
It is difficult from the detached position of a reviewing court to know whether our theoretical solutions work. If the order in this case is representative, and I suspect it is, then our case law commencing with Shepard v. Bowe is utterly inappropriate. Instead of providing for an objective psychiatric or psychological examination as contemplated by ORS 161.315, we have created a deposition-like adversary proceeding which has very little to do with truth-seeking. It is time, in a proper case, to reexamine this procedure in light of the defendant’s rights, the nature of mental defenses, the informational requirements of the examiner and the needs of the adjudicative process, but I concur that this is not the case in which to do so.
Howell, J., joins in this concurring opinion.