dissenting.
The majority holds that a state-appointed psychiatrist is entitled to testify before a jury that a criminal defendant asserted Fifth Amendment rights by refusing to answer certain questions during questioning, and asserted Sixth Amendment rights by insisting upon the presence of his attorney during questioning.1 This holding is inconsistent with prior Oregon decisions that the majority purports to apply.
In State v. Corbin, 15 Or App 536, 544, 516 P2d 1314 (1973), Sup Ct review denied (1974), we held that a state-appointed psychiatrist is "no different than any police officer when questioning a defendant.” This holding seems compelled by Shepard v. Bowe, 250 Or 288, 442 P2d 238 (1968).2 In State v. Dodson, 22 Or App 542, 540 P2d 380 (1975), and State v. Hunt, 15 Or App 76, 514 P2d 1363 (1973), Sup Ct review denied (1974), we held a police officer cannot testify before the jury that a criminal *262defendant asserted his constitutional rights. This holding seems compelled by Miranda v. Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed 2d 694, 10 ALR3d 974 (1966), and Griffin v. California, 380 US 609, 85 S Ct 1229, 14 L Ed 2d 106 (1964). Reading Corbin, Dodson and Hunt together, it necessarily follows that a state-appointed psychiatrist cannot testify about a criminal defendant’s assertion of constitutional rights.3
The majority’s reliance on the general rule that an expert witness is entitled to state the factual basis of his or her opinion is misplaced. This general rule does not convert what is otherwise inadmissible evidence into admissible evidence.
I respectfully dissent.
The majority suggests the holding is limited to the circumstances of this case. I perceive nothing unusual about the circumstances of this case.
If, as is not the case, the question before us were one of first impression, there is strong authority and sound reasons for a much narrower rule than that stated in Shepard v. Bowe, 250 Or 288, 442 P2d 238 (1968). But we are bound by the Shepard rule, and our duty here is limited to applying it.
State v. McCauley, 8 Or App 571, 494 P2d 438, Sup Ct review denied (1972), is to the contrary and should be overruled, unless it can be reconciled with our other decisions, which I find to be impossible.