concurring in part and dissenting in part.
I join all of the majority opinion in this unfortunate case except for the majority’s regrettable discussion and disposition of defendant’s assignment of error respecting the trial court’s refusal to permit him to present certain “alibi” evidence. As to that subject, and contrary to the majority, I believe that the trial court’s ruling excluding that evidence was precisely correct. I therefore respectfully dissent from that part of the majority opinion.
One piece of context for the majority’s analysis of the problem — and of mine — cannot be overemphasized. The jury in this case was empaneled to decide only whether this defendant should receive the death penalty; the question whether defendant was personally, criminally responsible for the *467deaths of the two victims had already been established by a separate jury trial, and that verdict had been affirmed on appeal. See State v. Guzek, 310 Or 299, 304, 797 P2d 1031 (1990) (affirming defendant’s convictions for two counts of aggravated murder). For various reasons, defendant’s sentence of death for those two murders has twice been reversed, and the present appeal is from the third jury verdict determining that defendant should receive the death penalty.
As the majority explains, 336 Or at 450, defendant in this case proffered evidence from two relatives to the effect that defendant could not have been one of the murderers, because he was elsewhere at the time. That is, he offered evidence that, in spite of the aforementioned jury verdict to the contrary, he was innocent of the crimes.
Defendant offered that evidence as “mitigating evidence” under ORS 163.150(l)(b)(D), which requires a court to submit to a jury in a case in which the defendant has been found guilty of aggravated murder the question “[w]hether the defendant should receive a death sentence.” A separate part of ORS 163.150(1) directs the trial court to give a specific instruction to the jury in connection with the foregoing question. It provides, in part:
“The court shall instruct the jury to answer the question in paragraph (b)(D) of this subsection ‘no’ if, after considering any aggravating evidence and any mitigating evidence concerning any aspect of the defendant’s character or background, or any circumstances of the offense * * * one or more of the jurors believe that the defendant should not receive a death sentence.”
ORS 163.150(l)(c)(B) (emphasis added). The issue in this case is whether, under the emphasized wording of that statutorily required jury instruction, defendant was entitled to have the jury consider the evidence that he proffered. The majority says that he was. I disagree.
The majority first divides the proffered evidence into two separate categories. 336 Or at 451. Respecting the testimony of defendant’s grandfather, defendant offered the transcript of the grandfather’s testimony from a previous trial of the case. The trial court refused to admit it. As the majority correctly notes, ORS 138.012(2)(b) provides that, in *468a sentencing proceeding conducted after reversal of an earlier proceeding, a transcript of all testimony, exhibits, and other evidence properly admitted in the former proceedings is admissible in the later proceeding. Thus, the majority concludes, the trial court’s contrary ruling respecting the grandfather’s testimony was error. 336 Or at 451.
I disagree that the trial court erred, because it is not clear to me that the statute automatically makes admissible all evidence, whatever its subject matter, from prior trials. The statute provides, in part, that, in a new sentencing proceeding:
“A transcript of all testimony and all exhibits and other evidence properly admitted in the prior trial and sentencing proceeding are admissible in the new sentencing proceeding. Either party may recall any witness who testified at the prior trial or sentencing proceeding and may present additional relevant evidence.”
ORS 138.012(2)(b) (emphasis added). The question is not free from doubt, but I would read the legislature’s use of the qualifying word, “relevant,” in the final sentence of ORS 138.012(2)(b) as indicating the legislature’s intention to limit the admissibility of any evidence in the later proceeding to “relevant” evidence. Certainly, and in any event, if the grandfather’s testimony would not have been relevant to any issue properly left for the jury to decide — as I believe to be the case — defendant can claim no prejudicial error in denying admission of the transcript of the grandfather’s testimony.1
The focus of the majority’s analysis is the testimony of defendant’s mother, which had not been offered previously and which, like that of the grandfather, would (if believed) be wholly exculpatory. The majority does an admirable job of tracing the lineage of the wording of ORS 163.150(l)(b)(D) and (c)(B). 336 Or at 452-57. That history establishes, as the majority acknowledges, that what the legislature intended to allow as “mitigating” evidence was precisely what the United States Supreme Court would require pursuant to the federal *469constitution; nothing more, nothing less. Thus, the true question in the case boils down to this: Would the United States Supreme Court, if faced with the question, hold that a defendant in the position of defendant here would be entitled, in a penalty-phase proceeding, to assert that he should receive a sentence less than death because, in fact, he is innocent of the underlying crime?
In my view, there is no clear binding authority respecting the issue. A majority of the Supreme Court never has dealt with the question. However, a four-judge plurality of that Court did address an analogous issue in 1988 in a way that is (in my view) so clear (and so clearly right) that I am content simply to adopt the plurality’s view now:
“At the outset, we note that this Court has never held that a capital defendant has a constitutional right to an instruction telling the jury to revisit the question of his identity as the murderer as a basis for mitigation. Petitioner suggests that our discussion of the ‘residual doubt’ question in Lockhart v. McCree, 476 US 162, 180-182, [106 S Ct 1758, 90 L Ed 2d 137] (1986), supports his position that he has such an entitlement. * * * But all that this aspect of the Lockhart opinion stands for is the simple truism that where ‘States are willing to go to allow defendants to capitalize on “residual doubts,” ’ such doubts will inure to the defendant’s benefit. Lockhart, supra, at 181. Lockhart did not endorse capital sentencing schemes which permit such use of‘residual doubts,’ let alone suggest that capital defendants have a right to demand jury consideration of‘residual doubts’ in the sentencing phase. Indeed, the Lockhart dissent recognized that there have been only a ‘few times in which any legitimacy has been given’ to the notion that a convicted capital defendant has a right to argue his innocence during the sentencing phase. 476 US, at 205-206 (Marshall, J., dissenting). The dissent also noted that this Court has not struck down the practice in some States of prohibiting the consideration of‘residual doubts’ during the punishment trial. Ibid”
Franklin v. Lynaugh, 487 US 164, 172-73, 108 S Ct 2320, 101 L Ed 2d 155 (1988) (White, J., plurality opinion) (emphasis in original) (footnote omitted). That is the line that this court should follow, unless and until the Supreme Court, forced to face the issue, tells us that we are wrong.
*470The majority argues that it has found a contrary holding in the Court’s brief, eight-to-one per curiam decision in Green v. Georgia, 442 US 95, 99 S Ct 2150, 60 L Ed 2d 738 (1979), but I find it impossible to imagine how, nine years later, four members of the Court could say what they said in Lynaugh, if this court’s majority correctly understands Green. In my view, as explained below, this court’s majority has not correctly understood Green.
The majority explains that, in Lockett v. Ohio, 438 US 586, 98 S Ct 2954, 57 L Ed 2d 973 (1978), and Bell v. Ohio, 438 US 637, 98 S Ct 2977, 57 L Ed 2d 1010 (1978), a plurality of the Supreme Court held that the Eighth and Fourteenth Amendments require that a sentencing jury be allowed to consider, “as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.”2 Lockett, 438 US at 604 (emphasis in original). The majority appears to recognize that, as interpreted in Lockett and Bell, “circumstances of the offense” relates to facts that would tend to reduce a defendant’s relative moral culpability for the crime, such as evidence of the defendant’s minor participation in the killing of the victim, for which he was held liable on an aiding-and-abetting theory. 336 Or at 460-41. On the basis of Green, however, the majority concludes that alibi evidence tending to prove that defendant did not participate at all in the crime is relevant to a “circumstance of the offense,” as interpreted by the Supreme Court, and, therefore, such evidence must be admitted during the penalty phase pursuant to the Eighth Amendment. According to the majority, Green supports that conclusion, because that case involved the introduction of testimony that contradicted the jury’s earlier finding of direct liability for the murder and because it includes the following sentence: “The excluded testimony was highly relevant to a critical issue in the punishment phase of the trial, see [Lockett, 438 US at 604-05] (plurality opinion); id., at 613-616 (opinion of Blackmun, J.), and substantial reasons existed to assume its reliability.” Green, 442 US at 97.
*471There are three problems with placing Green so prominently within the Court’s Eighth Amendment-Loc&eii jurisprudence. First, I disagree with the conclusion that the defendant in Green, like defendant in this case, sought to introduce evidence that contradicted the jury’s guilt-phase findings and would have led to an acquittal. Second, the citation to Lockett reflects nothing more than the Court’s conclusion that the defendant sought to introduce evidence about his minor participation in the actual killing of the victim, which was precisely the type of evidence made relevant by both the plurality and concurring opinions in Lockett. Third, the circumstances surrounding Green and its actual holding minimize its significance as a useful precedent for this case.
I begin with the majority’s first major premise, which is that “the defendant in Green had been convicted of the murder itself — that is, of the intentional killing of the victim — rather than of more limited, intentional participation in an underlying capital felony.” 336 Or at 461. The Supreme Court’s opinion in Green suggests otherwise. In the factual description of the case, the Court states that “[t]he evidence at trial tended to show that petitioner and Moore abducted Allen from the store where she was working alone and, acting either in concert or separately, raped and murdered her.” Green, 442 US at 96 (emphasis added). The Court’s disjunctive description indicates that the defendant in Green was tried for murder either as one of the killers or as a participant in the underlying felony, as was possible under the Georgia murder statute. See Scott v. State, 252 Ga 251, 252, 313 SE2d 87, 88 (1984) (explaining that, under Georgia Code Annotated 26-1101, a defendant may be convicted of felony murder when “acting in concert” with a codefendant in committing a crime and a death occurred). The Court’s description also echoes in general the elements of felony murder— the defendant, or someone acting in concert with the defendant, caused the death of another person during the course of committing a felony. See, e.g., Erwin S. Barbre, Annotation, Criminal Liability Where Act of Killing Is Done by One Resisting Felony or Other Unlawful Act Committed by Defendant, 56 ALR3d 239, 249 (1974) (discussing cases holding that “in order to convict a defendant under the felony-murder rule the act of killing must be that of defendant and *472that to be his act, the act must be committed by defendant or one acting in concert with him”) (emphasis added). Thus, the Court may have thought that the defendant in Green was convicted on a felony-murder theory.
That approach would make sense from the state’s perspective in Green. The state had clear evidence of defendant’s participation in the kidnapping and the acts taken in concert with his codefendant. Once the murder conviction was secured, the state then could argue — as it did during the penalty phase — that the defendant was directly involved in shooting the victim because she suffered two wounds, and the defendant should receive the death penalty for his participation in the killing. Green, 442 US at 96 n 2. That argument by the state would have been unnecessary if the guilt-phase jury — which also sat during the penalty phase — already had found that Green was directly responsible for the victim’s death.
Green also cites both the Lockett plurality and Justice Blackmun’s concurrence. Green, 442 US at 97 (citing Lockett, 438 US at 604-05; id. at 613-16 (Blackmun, J., concurring)). The Court’s citation to Justice Blackmun’s concurrence is revealing, because, in Lockett, Justice Blackmun took a narrower approach than the plurality. He would have held only that a state court may not sentence an aider-and-abettor to death without allowing the sentencer to consider the extent of that person’s involvement, and degree of mens rea, in the commission of the homicide. Lockett, 438 US at 614. By citing Justice Blackmun’s concurrence and its discussion of aiding-and-abetting liability, the Court reveals that the “critical issue” in Green is whether a defendant — who, along with a codefendant, has been found guilty of murder— may show that his relative culpability for the crime is minimal because he neither participated in the killing nor intended it to occur.
The majority asserts that, because neither the state lower courts nor the Supreme Court suggested otherwise, the defendant in Green must have been indicted and convicted for intentionally killing the victim. 336 Or at 461 n 26. I do not find that inference from silence persuasive. In my view, unlike defendant in this case, the Court did not view the *473defendant in Green as attempting to challenge his liability for the crime. Rather, just as in Lockett, the defendant in Green attempted to reduce, but not eliminate, his relative culpability by arguing that he did not intend the killing to occur. Under that more limited reading, which I think accurately describes the Court’s understanding of the facts before it, the majority’s effort to place Green in the same factual posture as the present case fails.
I turn to my second disagreement with the majority’s application of Green. To make Green work, the majority not only must find a factual similarity between that case and this case; the majority also must decide that, as a matter of law, Green concluded that the Eighth Amendment requires that, if offered, certain exculpatory evidence must be submitted at the penalty phase. To that end, the majority relies on the following sentence: “The excluded testimony was highly relevant to a critical issue in the punishment phase of the trial, see [Lockett, 438 US at 604-05] (plurality opinion); id., at 613-616 (opinion of Blackmun, J.), and substantial reasons existed to assume its reliability.” Green, 442 US at 97. The majority’s reliance on that sentence for its view of Green’s legal conclusion is unavailing.
First, the quoted sentence does not identify the “critical issue” to which it refers. As explained above, the facts and procedural history of Green are sufficiently ambiguous to suggest that the Court viewed the excluded testimony as relevant because it showed that defendant was a minor participant in a crime for which he properly was held liable — again, an uncontroversial view after Lockett.
Moreover, Green does not mention the Eighth Amendment, and the citation to Lockett comes within the context of a discussion of the relevance and reliability of the proffered testimony. As I read the Court’s opinion, Green’s citation to Lockett simply supports the claim that the evidence is logically relevant to the issues at the penalty phase. Stating that evidence is relevant to the critical issue of defendant’s culpability is distinguishable, however, from holding that evidence must be admitted at the penalty phase under the Eighth Amendment. Yet the majority suggests that Green sweeps precisely that broadly. 336 Or at 462-63 n 29.
*474Finally, the majority purports to find an Eighth Amendment holding in Green on the basis of the particular factual circumstances of the case and the citation to Lockett. Answering the Eighth Amendment question, however, was unnecessary to the Court’s disposition of the case. Once the Court concluded that the proffered hearsay testimony met the minimal requirements of relevance and reliability, it took the safer route and applied the established due process rule of Chambers v. Mississippi, 410 US 284, 302, 93 S Ct 1038, 35 L Ed 2d 297 (1973) (“[T]he hearsay rule may not be applied mechanistically to defeat the ends of justice.”). The Court’s approach left for another day the more controversial question of whether, and under what circumstances, the Eighth Amendment requires the admission of certain mitigating evidence at the penalty phase. As the majority notes, the Court reached that conclusion three years after Green, in Eddings, 455 US at 114.
In sum, the legal discussion in Green (such as there is) provides no persuasive support for the view that the Eighth Amendment requires certain alibi evidence to be admitted during the penalty phase.
As to my final disagreement with the majority’s application of Green, I observe that the circumstances of Green also militate against the majority’s interpretation of that case. The defendant in Green argued that he should have been allowed to offer in evidence a confession that his codefendant made to a third party, which indicated that the codefendant was solely responsible for the murder. According to the Court, under Georgia’s evidence rules, the confession was admissible during the guilt phase of the codefendant’s trial, and the state freely relied on it in winning a conviction. When it came time for the defendant to use the same confession during the penalty phase of his trial, however, the state argued that it was inadmissible hearsay. The trial court accepted that theory, and then the state expressly invited the penalty-phase jury to infer that the defendant was a direct participant in the killing. Thus, the mechanistic application of the hearsay rule deprived the defendant of presenting not only effective evidence regarding his lack of culpability, but evidence that would counter an express argument that the state had made during the penalty phase.
*475Faced with such a “heads we win, tails you lose” interpretation in a death-penalty case, the Court summarily granted certiorari, vacated the opinion below without argument, and issued a short, three-paragraph per curiam opinion that relied on Chambers to hold that the state’s approach to the hearsay rule violated the Due Process Clause. The Court took pains to limit its opinion. The Court stated at the outset that, “under the facts of this case,” the exclusion of the evidence at the penalty phase violated the Due Process Clause, not the Eighth Amendment. Green, 442 US at 97. The subsequent discussion focused on the reliability of the confession, and the Court particularly noted that the state had relied on the confession during the codefendant’s earlier trial. Again calling attention to the “unique circumstances” of the case, the Court concluded by stating that “the hearsay rule may not be applied mechanistically to defeat the ends of justice.” Id.
Those circumstances demonstrate to me that Green is a species of “shocks-the-conscience” opinion. The Court simply was not going to let the State of Georgia get away with that approach in a death-penalty case. Thus, I am not persuaded that Green resolves whether certain alibi evidence is relevant and must be admitted pursuant to the Eighth Amendment. That holding would have been much more controversial and, for the Court’s purposes in Green, was unnecessary.
Outside of its troubling reliance on Green, the majority faces an additional problem: Supreme Court cases discussing “residual doubt” arguments strongly suggest that alibi evidence is not relevant to a “circumstance of the offense” and, therefore, the Eight Amendment does not require its admission.
In Lockhart v. McCree, 476 US 162, 106 S Ct 1758, 90 L Ed 2d 137 (1986), the Court held that it was constitutionally permissible to exclude jurors who objected to imposing the death penalty prior to the guilt-phase of defendant’s trial. To support that holding, Justice Rehnquist cited capital defendants’ interest in having a unitary jury to which they could argue “residual doubt.” Id. at 181. In dissent, Justice *476Marshall disparaged the Court’s concern with the defendant’s ability to argue residual doubt. He stated that “this case will stand as one of the few times in which any legitimacy has been given to the power of a convicted capital defendant facing the possibility of a death sentence to argue as a mitigating factor the chance that he might be innocent,” and he further noted that the Court had denied certiorari in state cases that had refused to allow defendants to make residual doubt arguments during capital sentencing proceedings. Id. at 205-06 (Marshall, J., dissenting). Justice Marshall (who was no advocate of the death penalty) did not even cite Green, which he certainly should have done, if that case stood for the proposition for which the majority now cites it. More fundamentally, as Justice Marshall’s dissent makes clear, it is difficult to see how a court that was reluctant to give any legitimacy to capital defendants’ residual doubt arguments as of 1986 could have concluded seven years earlier that the Eighth Amendment required evidence intended to raise residual doubts to be admitted at the penalty phase.
As I have noted, Franklin confirms that impression. In Franklin, the plurality suggested in the strongest terms that a defendant had no constitutional right to argue, during the penalty phase, that the defendant’s life should be spared because there was a possibility that he was innocent:
“At the outset, we note that this Court has never held that a capital defendant has a constitutional right to an instruction telling the jury to revisit the question of his identity as the murderer as a basis for mitigation. Petitioner suggests that our discussion of the ‘residual doubt’ question in [Lockhart] supports his position that he has such an entitlement. * * * But all that this aspect of the Lockhart opinion stands for is the simple truism that where ‘States are willing to go to allow defendants to capitalize on “residual doubts,” such doubts will inure to the defendant’s benefit.’ Lockhart did not endorse capital sentencing schemes which permit such use of ‘residual doubts,’ let alone suggest that capital defendants have a right to demand jury consideration of ‘residual doubts’ in the sentencing phase. Indeed, the Lockhart dissent recognized that there have been only a ‘few times in which any legitimacy has been given’ to the notion that a convicted capital defendant has a right to argue his innocence during the sentencing phase. The dissent also noted that this Court has not *477struck down the practice in some States of prohibiting the consideration of ‘residual doubts’ during the punishment trial.
“Our edict that, in a capital case, ‘ “the sentencer * * * [may] not be precluded from considering, as a mitigating factor, any aspect of a defendant’s character or record and any of the circumstances of the offense,” ’ in no way mandates reconsideration by capital juries, in the sentencing phase, of their ‘residual doubts’ over a defendant’s guilt. Such lingering doubts are not over any aspect of petitioner’s ‘character,’ ‘record,’ or a ‘circumstance of the offense.’ This Court’s prior decisions, as we understand them, fail to recognize a constitutional right to have such doubts considered as a mitigating factor.”
Franklin, 487 US at 172-74 (footnotes and citations omitted) (emphasis in original).
Justice O’Connor would have reached the constitutional issue directly and precluded any consideration of residual doubt as a mitigating factor. Id. at 187 (O’Connor, J., concurring) (“Our cases do not support the proposition that a defendant who has been found to be guilty of a capital crime beyond a reasonable doubt has a constitutional right to reconsideration by the sentencing body of lingering doubts about his guilt.”).
I acknowledge that Franklin and Lockhart do not dictate the outcome here. Lockhart’s discussion is dicta, and a strict view of Franklin’s actual holding is that a defendant does not have a constitutional right to a jury instruction specifically calling attention to any lingering doubts about defendant’s guilt. Neither case delineates the scope of evidence that a jury must be allowed to consider at the penalty phase.
Nevertheless, Franklin and Lockhart shed light on the Court’s view of whether evidence suggesting that defendant may be innocent is relevant mitigating evidence under its interpretation of Lockett and its progeny. Franklin suggests that, just as residual doubt is not a constitutionally mandated mitigating factor that a jury must be allowed to consider, the Court also would hold that evidence intended to raise residual doubts about the defendant’s guilt is not relevant to any constitutionally mandated mitigating factor. In *478other words, given that the Court has allowed states to bar residual doubt arguments, it appears to follow ineluctably that, consistent with the Eighth Amendment, the Court would allow states to exclude evidence that is relevant only because it would bolster those arguments — that is, evidence intended only to challenge the accuracy of the underlying guilty verdict.
I therefore disagree with the majority’s attempt to minimize the significance of Franklin. 336 Or at 463 n 30. Franklin is not simply a jury instruction case, as suggested by the majority. Rather, by discussing the scope of what constitutes a “circumstance of the offense,” a majority of the Court necessarily communicated its view regarding the relevance under the Eighth Amendment of evidence intended to raise doubts about the accuracy of the guilty verdict. Because it suggests that such evidence is not “relevant mitigating evidence” as understood by the Court, Franklin cannot be dismissed so easily.
Other than that footnote, the majority does not address the concept of residual doubt. As I understand its view, the majority today holds that, as a matter of federal constitutional law, defendant’s alibi evidence must be admitted as relevant to the mitigating factor of “circumstances of the offense,” but the opinion need not and does not decide that the Eighth Amendment requires a jury to consider, or a defendant to have the opportunity to raise, any residual doubts about the defendant’s guilt at the penalty phase. I do not share that view of either the correctness or scope of the majority’s holding.
In order to be admitted, the defendant’s alibi evidence must be “relevant mitigating evidence.”3 Eddings, 455 US at 114. In my view, the alibi evidence in this case is “relevant” and “mitigating” only in the sense that it challenges the accuracy of the underlying guilty verdict. It is intended to create or play upon any lingering doubts that the jury might have about the evidence that was used to convict the defendant. The alibi evidence does not describe the reason that *479defendant committed the offense, his conduct during the offense, his relative participation in the offense, or any other fact or circumstance regarding the offense itself that would reduce his moral responsibility. In fact, the proposed testimony quite literally does not say anything about defendant’s offense at all.4 See Lockett, 438 US at 604 n 12 (stating that a court may exclude, as irrelevant, “evidence not bearing on the defendant’s character, prior record, or the circumstances of his offense”) (emphasis added); see also Blystone v. Pennsylvania, 494 US 299, 304, 110 S Ct 1078, 108 L Ed 2d 255 (1990) (“[The death penalty in Pennsylvania] is imposed only after a determination that the aggravating circumstances outweigh the mitigating circumstances present in the particular crime committed by the particular defendant, or that there are no such mitigating circumstances. This is sufficient under Lockett and Penry.”) (emphasis added). Rather, the alibi evidence’s only relationship to the offense is temporal, and its relevance is only to establish that, in fact, defendant committed no offense at all.
The proposed testimony, therefore, is distinguishable from the evidence offered in Lockett, Bell, and Green. In those cases, the evidence concerned facts about the commission of the crime. See, e.g., Bell, 438 US at 642 (holding that the Eighth Amendment required consideration of “the particular circumstances of [defendant’s] crime and aspects of his character and record as mitigating factors” (emphasis added)); see also Woodson v. North Carolina, 428 US 280, 304, 96 S Ct 2978, 49 L Ed 2d 944 (1976) (stating that “circumstances of the particular offense” are “a constitutionally indispensable part of the process of inflicting the penalty of death” (emphasis added)). As those cases demonstrate, the purpose of requiring consideration of the “circumstances of the offense” is to allow the jury to decide whether the relative heinousness of the defendant’s crime merits the death penalty.
In the present case, the alibi evidence is not related to any mitigating fact that informs the jury’s consideration of *480the severity of the crime. Rather, the evidence is a naked collateral attack on the sufficiency of the evidence supporting defendant’s conviction. Regardless of the merits or effectiveness of that approach, Franklin strongly suggests that the state does not violate the Eighth Amendment if, during the penalty phase, it prohibits arguments or evidence intended to demonstrate that defendant is, in fact, innocent.
This defendant has been adjudged guilty of the two murders in question. Whatever the concept of “any aspect of the defendant’s character or background, or * * * circumstance of the offense” may encompass, I cannot in reason believe that the Supreme Court, when faced with the issue directly, would hold that it encompasses revisiting the issue of guilt or innocence of the underlying offense.5 The majority’s contrary conclusion is wrong.
I respectfully dissent.
Carson, C. J., joins in this separate opinion.For some reason, the state did not, in its extensive briefing in this case, separately discuss either the grandfather’s or the mother’s testimony.
The plurality holding of Lockett ripened into a majority holding of the Court in Eddings v. Oklahoma, 455 US 104, 102 S Ct 869, 71 L Ed 2d 1 (1982).
As noted, the majority correctly holds that the scope of mitigating evidence relevant to the fourth question is coextensive with what is required to be considered under the Eighth Amendment.
Indeed, it is conceivable that, after this opinion, scientific evidence challenging the accuracy of eyewitness testimony or fingerprint evidence admitted during the guilt phase could be considered relevant to a “circumstance of the offense.”
The foregoing point is made even more forcefully when one considers that revisiting the issue of guilt or innocence is permitted in specified circumstances, such as (1) the discovery of new evidence (if that is what happens) (ORS 136.535; ORCP 64 B(4)); (2) post-conviction proceedings, where it is alleged that counsel failed to perform adequately and, had counsel done so, evidence of innocence would have been discovered (ORS 138.510 to 138.686); or (3) executive clemency or pardon.