concurring.
I concur in the majority’s analysis of Article I, section 11, of the Oregon Constitution. I write separately to explain why I join in the court’s decision to remand the case to the Court of Appeals for farther consideration.
The Court of Appeals’ majority decided that the confusion engendered by the trial court’s conflicting instructions about the consequences of a verdict of guilty except for insanity deprived defendant of a fair trial under Article I, section 11. As a result, the Court of Appeals’ majority had no reason to decide whether the court’s instructions also deprived defendant of his fair trial and due process rights under the Sixth and Fourteenth Amendments to the United States Constitution. State v. Amini, 154 Or App 589, 594-95, 963 P2d 65 (1998).
The dissenting opinion in the Court of Appeals assumed that a defendant has a fundamental due process right that requires that the court not permit a jury to consider the consequences of a verdict of guilty except for insanity in deciding guilt or innocence. Id. at 605 (Warren, J., dissenting). Given that assumption, the dissent focused on whether there was any reasonable likelihood that the jury in this case actually had interpreted the trial court’s instructions in a manner that violated the asserted due process right and concluded that no such reasonable likelihood existed. For that conclusion, the dissent relied in part on the trial court’s *398jury instruction that the jury should “not consider what sentence might be imposed by the Court if this defendant is found guilty,” and in part on the judicial assumption that juries follow the court’s instructions. Id. at 607.
If the legal analysis offered by the Court of Appeals’ dissent were correct, then this court’s proper disposition simply would be to reverse the decision of the Court of Appeals. A remand would be unnecessary if the record affirmatively demonstrated that the jury only learned about, but probably did not consider, the consequences of a verdict of guilty except for insanity when it decided defendant’s guilt or innocence. In my view, however, the record does not support that analysis.
The trial court’s instruction about the consequences of a verdict of guilty except for insanity began with the following statement: “If the defendant is found guilty except for insanity, the defendant is subject to the following dispositions: * * *.” The parties appear to agree that the court’s instruction under ORS 161.313 accurately described the dispositions that apply to a person found guilty except for insanity under ORS 161.327. Despite the specificity of the court’s instruction under ORS 161.313, the court’s other instruction, quoted above, that directed the jury not to consider the potential sentence that the court would impose after a verdict of guilty, might have eliminated any reasonable likelihood that the jury nevertheless did consider the potential sentence in its deliberations. But the record contains other information that bears on that issue.
After delivering the instructions discussed above, the trial court made the following additional statement to the jury:
“We went through this to check for mistakes and already there is one. Where I said do not consider what sentence might be imposed by the Court if the defendant is found guilty, that’s only partially true. The Aggravated Murder charge is — if there is a guilty finding, you’re the one that makes the decision on those.”
That statement qualified the earlier instruction that the jury should not consider the consequences of a verdict of guilty except for insanity. The court’s statement informed the *399jury that the court’s earlier admonition about not considering the potential sentence did not apply to the charge of aggravated murder.
The combination of the instruction under ORS 161.313, the admonition not to consider the consequences of a guilty verdict, and the qualifying statement quoted above created a reasonable likelihood that the jury took into account the potential sentence when it considered the charge of aggravated murder. Defendant argued, both at trial and in the Court of Appeals, that that combination of instructions deprived him of a fair trial. Defendant thus raises a colorable argument that the trial court’s instructions violated his rights under the Sixth and Fourteenth Amendments. The record in this case requires a remand to allow the Court of Appeals to address defendant’s federal claims.
I concur.