dissenting.
A majority of this court holds that Article I, section 11, of the Oregon Constitution guarantees that defense counsel cannot be barred from attendance at a presentence interview and a plurality would reach the same result under the Sixth Amendment to the United States Constitution. I disagree with both conclusions.
The majority holds that the presentence investigation “is a part of the sentencing procedure,” and that “just as a sentencing hearing to determine a defendant’s future liberty is a stage of a prosecution at which the assistance of counsel cannot be denied, so is a presentence interview.” 293 Or at 317. The presentence interview may be the functional equivalent of a portion of the information-gathering process formerly conducted by the court during the sentencing hearing itself. However, a distinction should be drawn between the presentence interview and the sentencing hearing for purposes of extending to the defendant the right to have a lawyer present.
Gebhart v. Gladden, 243 Or 145, 148-149, 412 P2d 29 (1966), describes the rationale underlying the right to counsel at a sentencing hearing as follows (quoting from Martin v. United States, 182 F2d 225 (5th Cir 1950):
“ ‘ “The very nature of the proceeding at the time of imposition of sentence makes the presence of defendant’s *322counsel at that time necessary if the constitutional requirement is to be met. There is then a real need for counsel. The advisability of an appeal must then, or shortly, be determined. Then is the opportunity afforded for presentation to the Court of facts in extenuation of the offense, or in explanation of the defendant’s conduct; to correct any errors or mistakes in reports of the defendants’ [sic] past record; and, in short, to appeal to the equity of the Court in its administration and enforcement of penal laws. Any Judge with trial Court experience must acknowledge that such disclosures frequently result in mitigation, or even suspension, of penalty. That it is also true that such discussion sometimes has a contrary result, does not detract from the fact that the nature and possibilities of this important stage of the proceedings are such as make the absence of counsel at this time presumably prejudicial.” ’ ” (Emphasis added.)
As will be seen below, the reasons why assistance of counsel is required at sentencing do not exist at the presentence interview. The majority opinion never expresses any satisfactory reason why it is necessary that an attorney be present. On the contrary, the majority finds it “hard to anticipate why a defense attorney would wish to attend” (other than for “moral support” in this case) (293 Or at 320), states that “[o]ften, little purpose would be served by the presence of counsel at a presentence interview” (293 Or at 317), and merely concludes that “circumstances are conceivable where the presence of counsel would be helpful” (293 Or at 318).
For centuries, the central concept of punishment was retributive: an eye-for-an-eye and a tooth-for-a-tooth. But as early as 1859, Article I, section 15, of the Oregon Constitution provided that “Laws for the punishment of crime shall be founded on the principles of reformation, and not of vindictive justice.” The 19th century saw the beginnings of individualized sentencing, and the 20th century has seen the advent of an enlightened diagnostic process popularly referred to as the presentence investigation.
The first Oregon statute providing for presentence reports was passed in 1931, Or Laws ch 396, section 2, now ORS 137.530. Present Oregon statutes concerning presentence reports, their preparation and use, are found in ORS *323chapters 137 and 144. ORS 144.790 requires the Corrections Division to furnish a presentence report to the sentencing court whenever any person is convicted of a felony. The statute requires that the reports “* * * contain recommendations with respect to the sentencing of the defendant, including incarceration or alternatives to incarceration whenever the Corrections Division officer preparing the report believes such an alternative to be appropriate. All recommendations shall be for the information of the court and shall not limit the sentencing authority of the court.”
ORS 137.079 requires that copies of the report and all other written information considered by the court in imposing sentence be made available to the district attorney and the defendant or his counsel a reasonable time prior to sentencing. ORS 137.530 provides:
“Probation officers, when directed by the court, shall fully investigate and report to the court in writing on the circumstances of the offense, criminal record, social history and present condition and environment of any defendant; and unless the court directs otherwise in individual cases, no defendant shall be placed on probation until the report of such investigation has been presented to and considered by the court. Whenever desirable, and facilities exist therefor, such investigation shall include physical and mental examinations of such defendants.”
ORS 137.077 specifically provides that the presentence report is not a public record and shall be available only to the sentencing court, the Corrections Division and related agencies, appellate or review courts, the district attorney and the defendant or the defendant’s counsel. Although a presentence report is required in all felony cases (unless the defendant requests otherwise and the court and prosecutor concur, ORS 144.795), there is no statutory requirement that such a report include a personal interview with the defendant.
Except where a statute provides a mandatory penalty, the sentence imposed by the court usually involves the exercise of judgment by the sentencing judge. This statement from State v. Scott, 237 Or 390, 399-400, 390 P2d 328 (1964), is apposite:
*324“The sentencing court in Oregon has the complete and unrestrained discretion to sentence a convicted defendant up to the maximum for the particular crime as fixed by the legislature. However, the Constitution of Oregon, Art I, § 15, requires that reformation be the object of the sentence, not vindictive justice. Apart from this constitutional requirement, the sentencing court today considers the criminal, as much as the crime, in fixing the sentence. The application of these two principles can cause the same court to give two entirely different sentences to two defendants convicted of committing the same crime.
“The sentencing court must be provided with a great variety of information in order that it can competently perform its most burdensome function * * *. The issue after conviction * * * is not: Was the crime committed? Rather, the issues at this time are: What is the character of the defendant? Will he be a menace to society if he is not incarcerated? Will he be more likely to respond to probation or to imprisonment? * * *.”
In Buchea v. Sullivan, 262 Or 222, 228, 497 P2d 1169 (1972), we stated:
“* * * rphe theory behind the use of presentence investigations is that the sentence should be individualized to the offender: it should fit him, not merely the crime. If criminal correction is intended to effect reformation and rehabilitation, as well as to provide protection to the public, the sentence should be tailored to the defendant’s life history and personal characteristics.”1
*325The presentence interview is not conducted by a police officer. In many cases, the interviewer would be the defendant’s probation officer, should the defendant be placed on probation. The examination is not prosecutorial in nature; rather, the aim is to obtain as much information as possible relevant to the imposition of an appropriate sentence. The interview is not initiated by the prosecution, nor is the interview adversarial. It is generally conducted with neither the defendant’s attorney nor the prosecuting attorney present. It is not police-initiated custodial interrogation in the sense of the interrogation in Edwards v. Arizona, 451 US 477, 101 S Ct 1880, 68 L Ed 2d 378 (1981).2
*326In summary, the presentence interview is made with the best interests of the defendant in mind, often in a noncustodial environment, with rehabilitation an important objective, and in an atmosphere which is neither pros-ecutorial nor adversarial.
Article I, section 11, of the Oregon Constitution, reduced to its simplest terms, guarantees that “in all criminal prosecutions the accused shall have the right * * * to be heard by himself and counsel * * *.”3 Article I, section 11, was taken from essentially identical provisions in Article I, section 13, of the Indiana Constitution of 1851, and was adopted without amendment or discussion. C. Carey, A History of the Oregon Constitution 120, 402, 468 (1926).4
The right to counsel in the United States was not derived from English common law. On the contrary, the right to counsel as known in the United States arose as a reaction to perceived inadequacies in the English criminal law system. Under that system a person charged with a felony was denied the aid of counsel at trial, except with regard to legal questions, even though persons accused of misdemeanors and parties in civil cases were entitled to the full assistance of counsel. The English policy was rationalized by the maxim that “the judge was counsel for the prisoners.” Although the policy was subject to vigorous criticism, the rule remained unchanged by Parliament until 1836.5 See 4 Blackstone Commentaries 354-356; United *327States v. Ash, 413 US 300, 306-310, 93 S Ct 2568, 37 L Ed 2d 619 (1973); Powell v. Alabama, 287 US 45, 60-61, 53 S Ct 55, 77 L Ed 158 (1932). R. Clinton, The Right to Present a Defense: An Emergent Constitutional Guarantee in Criminal Trials, 9 Ind L Rev 720 (1976).
An express grant of a right to counsel first appeared in the prerevolutionary Massachusetts Body of Liberties. 1 Schwartz, The Bill of Rights: A Documentary History 69 (1971). It provided:
“Every man that findeth himselfe unfit to plead his owne cause in any Court shall have Liberties to employ any man against whom the Court doth not except, to helpe him, Provided he give him noe fee or reward for his paines. This shall not exempt the partie him selfe from Answering such Questions in person as the Court shall thinke meete to demand of him.” Mass. Body of Liberties Art 26 (1641), reprinted in 1 Schwartz, supra at 74.6
*328The English rule was rejected by at least 12 of the original 13 colonies,7 United States v. Ash, supra, 413 US at 306-307; Powell v. Alabama, supra, 287 US at 62-65, although the scope of the colonial right to counsel, as granted by charter or statute or as allowed in practice, differed in various colonies.8 A vivid example of the role of counsel in one colonial trial is presented by the 1735 *329seditious libel trial of the printer, Peter Zenger, in New York.9 Two respected attorneys appeared on the defendant’s behalf after his arrest, demanded reasonable bail, and filed objections to the commission of the court’s two justices. In response, the court held the two attorneys in contempt and disbarred them, apparently deliberately, to remove from Zenger’s defense “the most brilliant attorneys in the Province and the ones most likely to success.” J. Marke, Vignettes of Legal History 232 (1965). The court then appointed an attorney of its choice to defend Zenger. The appointed attorney entered a plea of not guilty on Zenger’s behalf. However, Zenger’s supporters secretly retained a prominent Philadelphia lawyer, Andrew Hamilton, who appeared at trial and was grudgingly permitted to conduct Zenger’s defense. Hamilton and the prosecutor engaged in vigorous legal argument before the court and the jury and Hamilton addressed the jury at length in summation. Zenger was acquitted. The details of this prerevolu-tionary trial demonstrate that even in a colony in which the right to counsel was not expressly guaranteed, the defense attorney played a significant role in the trial with respect to the technicalities of the law.
James Madison, in drafting the Bill of Rights for recommendation to Congress, considered some 210 different *330amendments which had been proposed by the ratifying conventions of eight states. 2 Schwartz, supra at 983, 1167.10 He did not use the “right to be heard by * * * counsel” language that was later included in the Oregon constitution, Id. at 1027, although such language was proposed by the minority in Pennsylvania. Our research has not disclosed any reason for Madison’s choice of words and it appears that there was no congressional debate of the substance of the provision. It is clear, however, that the phraseology ultimately adopted by the drafters of the Oregon Constitution in 1859 (“to be heard by himself and counsel”) predated the 1789 language of the federal bill of rights (the right “to the Assistance of Counsel for his defence”) by some 13 years, and there is no historical basis for interpreting the “right to counsel” provisions of the two constitutions differently.
It is apparent that the colonists, in guaranteeing the “right to be heard by counsel,” contemplated the assistance of counsel in adversarial stages of criminal proceedings including the presentation of evidence, examination of witnesses and the presentation of legal objections, motions, and arguments to the judge and jury as to the law and the facts. I have found nothing in state or federal constitutional history that leads to the conclusion that the right “to be heard * * * by counsel” guaranteed by Article 1, section 11, of the Oregon constitution, and the defendant’s right “to the Assistance of Counsel for his defence,” guaranteed by the Sixth Amendment to the United States Constitution, were designed to achieve any other result.
This court has held that the right to counsel in certain pretrial stages is an extension of a defendant’s right *331to representation by counsel in court. State v. Newton, 291 Or 788, 802, 636 P2d 393 (1981).
«* * * Any pre-trial adversarial contact of the state and a defendant at which some benefit of counsel would be lost if counsel is not present, that is, at which the state’s case may be enhanced or the defense impaired due to the absence of counsel, may be considered a critical stage of the prosecution at which defendant has a right to the presence of counsel. * * *” State v. Newton, supra, 291 Or at 802-803.
Both constitutions refer to the right to counsel “in all criminal prosecutions.” The term “criminal prosecution” is not limited to the trial itself, but has been recognized in Oregon decisions as including a number of other procedures such as: arraignment, Miller v. Gladden, 249 Or 51, 54, 437 P2d 119 (1968); appeal, Richardson v. Williard, 241 Or 376, 378, 406 P2d 156 (1965); preliminary hearing, see State v. Clark, 291 Or 231, 234, 630 P2d 810 (1981); post-indictment lineup, see State v. Meyers, 24 Or App 561, 564, 546 P2d 771 (1976); and sentencing and probation revocation, Perry v. Williard, 247 Or 145, 149, 427 P2d 1020 (1967); Gebhart v. Gladden, 243 Or 145, 150, 412 P2d 29 (1966); all being situations in which an unaided layperson often lacks the training, education and skill to cope with procedures which are at times intricate. The point is that the right to counsel exists, not only in the formal trial stage of a criminal prosecution, but also in situations which present the same dangers that gave birth to the right itself. United States v. Ash, 413 US 300, 311, 93 S Ct 2568, 37 L Ed 2d 619 (1973). Underlying all of these decisions and rules is the premise that the accused is entitled to the assistance of counsel in meeting the claims of the prosecution where, without the assistance of counsel, the defendant might be prejudiced in his or her defense.
All of the situations in which the right to counsel has been upheld in this state involved trial-like situations in which there has been a confrontation between the prosecutor and the defendant. The confrontation may begin as early as the arraignment stage and it continues through the sentencing stage. But that does not mean that, at every intermediate step of the way, the defendant must be afforded the right to have counsel present. In a *332nonconfrontive situation such as a photographic (a “throw-down”) display, the Supreme Court of the United States has held that cross-examination at trial is adequate protection under the federal counterpart to our Article I, section 11. United States v. Ash, supra, 413 US at 313-314.
A presentence interview is neither adversarial, con-frontive, nor a part of a “criminal prosecution,” as that term is used in Article I, section 11. Whether the term “criminal prosecution” be viewed through the eyes of one of the framers of the constitution or through the eyes of a knowledgeable person in 1982, the presentence interview is not prosecutorial in nature. In such a situation, Article I, section 11, does not require that defendant be given counsel. Guilt is no longer an issue. The need to be heard by counsel is not there present, for the defendant has a constitutional right to be heard by counsel at the hearing at which the report is considered. ORS 137.079 requires that defendant or his attorney have access to the report “a reasonable time before the sentencing.” These procedures are sufficient to protect the defendant’s rights under Article I, section 11. There is no risk of irremediable harm from the absence of counsel at the presentence interview.
I also disagree with the plurality’s conclusion that to bar defendant’s lawyer from the presentence interview would contravene the provisions of the Sixth Amendment of the Constitution of the United States. The plurality opinion’s Sixth Amendment analysis appears to be: A defendant has the right to the assistance of counsel at all “post-indictment out-of-court critical stages, where, without the assistance of counsel, the legal interests of the defendant might be prejudiced” 293 Or at 315. Sentencing “is a critical stage of a criminal prosecution at which a defendant is guaranteed counsel,” 293 Or at 315, and that “just as a sentencing hearing to determine a defendant’s future liberty is a stage of a prosecution at which the assistance of counsel cannot be denied, so is a presentence interview,” 293 Or at 317. Therefore, the Sixth Amendment (and the Oregon Constitution) “require that counsel may not be barred from attendance at a presentence interview.” 293 Or at 318. It is not altogether clear whether the plurality bases its Sixth Amendment conclusion on the premise that the *333presentence interview is an “out-of-court critical stage” or on the premise that the presentence interview is a “court proceeding.” The stated conclusion is that the presentence interview is a “stage of a prosecution.”
I am convinced that the Supreme Court of the United States would not hold that the defendant’s Sixth Amendment rights have been violated in this case. The cases in which the right to counsel has been held to exist involve proceedings which were adversarial or confrontive in nature, or situations involving obtaining evidence from the witness’s lips for use at trial.11 The Supreme Court’s Sixth Amendment holdings are based, at least in part, upon the need for counsel to protect the defendant from the prejudice that “* * * an unaided layman [with] little skill in arguing the law or in coping with an intricate procedural system [would encounter in the absence of counsel].” United States v. Ash, 413 US 300, 307, 93 S Ct 2568, 37 L Ed 2d 619 (1973). The right has been extended to various out-of-court events that are appropriately considered to be “critical” stages of a criminal prosecution because the absence of counsel, in such situations, presents danger of substantial irremediable prejudice. The function of the lawyer in such situations “has remained essentially the same as his function at trial.” Ash, supra, 413 US at 312.
One such out-of-court event is a court-ordered pretrial psychiatric interview. Most courts hold that a defendant is not entitled to have counsel present at a court-ordered pretrial psychiatric interview, which the defendant must attend, or lose the right to assert a defense of lack of mental capacity. See United States v. Baird, 414 F2d 700, 711 (2d Cir 1969); United States v. Bohle, 445 F2d 54, 67 (7th Cir 1971). Compare, United States v. Cohen, 530 F2d *33443, 47-48 (5th Cir 1976).12 I perceive a greater need for the assistance of counsel in such a situation; more than in the present case.
When the majority’s conclusion is examined in light of only the words of the majority opinion itself, it is apparent that the conclusion results from intuition, not deduction. To illustrate my point, I quote from an authority with which the majority cannot but agree — its own opinion:
“* * * Often, little purpose would be served by the presence of counsel at a presentence interview and a conscientious defense attorney would not necessarily feel obliged to attend to protect his client’s interests. After guilt is no longer in issue, the inquiry is into defendant’s background, present situation and attitude. At the hearing, the report of information given by the defendant is subject to disclosure and defense counsel can make objections and present evidence and additional statements by defendant. Given these procedural opportunities, rarely would there be risk of irremediable harm from the absence of counsel at the presentence interview. Yet, circumstances are conceivable where the presence of counsel would be helpful. * * *
# * * *
“It is hard to anticipate why a defense attorney would wish to attend a presentence interview or examination or what professional service he could perform if present. * * * Here, consistent with the trial judge’s observations, the petition alleges a need for the attorney to provide what is essentially moral support rather than legal service. * * *” 293 Or at 317-18, 320.
These statements point to the conclusion that there is no pressing need for the attendance of counsel at a presentence interview and that the question is better left to the discretion of the trial judge in a particular case, not as a matter of constitutional right in every criminal case. See the dissenting opinion of Campbell, J., 293 Or at 339.
*335The majority’s strangest utterances are those which, after having created the constitutional right to assistance of counsel at the interview, then depreciate the need for its exercise. It is stated that “little purpose would be served by the presence of counsel at a presentence interview,” that “a conscientious defense attorney would not necessarily feel obliged to attend to protect his client’s interests,” that “guilt is no longer in issue,” that “we expect the practical effects of our holding to be negligible in most cases” (293 Or at 317-18, 320). If the right exists, it will be exercised by many, perhaps most defendants, and their attorneys, out of caution or self interest, and the right would have to be intelligently and competently waived. Schram v. Cupp, 425 F2d 612 (9th Cir 1970); Johnson v. Zerbst, 304 US 458, 464-465, 58 S Ct 1019, 82 L Ed 1461 (1938).
My research has found no decision of any court, state or federal, involving a claim of a deprivation of a federal or state constitutional right for failure to allow counsel to attend a presentence interview. While the absence of precedent is, by itself, neither dispositive nor even strongly suggestive of the proper result, the absence of such claims suggests that abuses are not occurring incident to presentence interviews and that the fears expressed by the defendant in his brief are either without basis or that a proper response can be made incident to the sentencing hearing.13
This court’s opinion heralds a new chapter in state and federal constitutional law, based upon a petition which, according to the majority, “alleges a need for the attorney to provide what is essentially moral support rather than legal service.” 293 Or at 320. Although the quantitative defense of accused persons will be increased, I envision *336no overall qualitative increase in the defense effort, as a result of the court’s opinion in this case.
A commentary on presentence procedures in federal courts describes the function of the reports in the sentencing process as follows:
“The development of sentencing procedures, including the presentence report, is intimately connected with the rehabilitative model of sentencing * * *. It [the rehabilitative sentencing model] is premised on the assumption that a sentencing judge, armed with an intimate knowledge of the offender’s character and background and aided by scientific and clinical evaluations, can determine an appropriate sentence and treatment program that will rehabilitate the offender. Under this model, the sentencing judge seeks to define the offender’s exact personality and social situation, and then prescribes an ‘individualized’ sentence and treatment program. Because rehabilitation is the primary objective, the sentencing judge theoretically is less concerned with deterring future.crime or achieving retribution for society.
“Individualized sentencing based on the rehabilitative model involves three related premises in the American criminal justice system. First, a sentencing judge has broad discretion to select a sentence. He may sentence the defendant to a fixed or indeterminate period of imprisonment or commitment, a period of probation, a suspended sentence, a fine, or some combination of these. The judge’s decision, if within statutory limits, is generally unreviewable. Second, a *325sentencing judge must have complete information about every aspect of the offender’s life in order to make an accurate diagnosis and choose an effective sentence. Third, the sentencing decision is made in a quasi-administrative setting that is virtually free of triallike procedural safeguards.” (Footnotes omitted.) S. Fennell and W. Hall, Due Process at Sentencing: An Empirical and Legal Analysis of the Disclosure of Presentence Reports in Federal Courts, 93 Harv L Rev 1613, 1621-1622 (1980).
Presentence reports are prepared and used after conviction incident to the imposition of sentence. Concerning the use of information incident to sentencing, Mr. Justice Black, speaking for the court in Williams v. New York, 33Y US 241, 246-251, 69 S Ct 1079, 93 L Ed 1137 (1949), observed that the rules applicable to the adversarial phases of a criminal prosecution do not necessarily apply in a sentencing hearing. The opinion states:
“* * * A sentencing judge * * * is not confined to the narrow issue of guilt. His task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant — if not essential — to his selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics. And modern concepts individualizing punishment have made it all the more necessary that a sentencing judge not be denied an opportunity to obtain pertinent information by a requirement of rigid adherence to restrictive rules of evidence properly applicable to the trial.”
<(‡ % ♦
“* * * And the modern probation report draws on information concerning every aspect of a defendant’s life. The type and extent of this information make totally impractical if not impossible open court testimony with cross-examination. Such a procedure could endlessly delay criminal administration in a retrial of collateral issues.”
Compare this descriptive language from a more recent case, addressing the role of an analogous figure, the parole officer:
“The parole officer’s attitude toward these decisions reflects the rehabilitative rather than punitive focus * * Gagnon v. Scarpelli, 411 US 778, 785, 93 S Ct 1756, 36 L Ed 2d 656 (1973).
The Sixth Amendment provides that “in all criminal prosecutions the accused shall * * * have the Assistance of Counsel for his defense.”
The 1851 Indiana constitutional provisions were derived from Article 13 of the Indiana constitution of 1816 (“That in all criminal prosecutions, the accused hath a right to be heard by himself and counsel * * * and shall not be compelled to give evidence against himself’), which were adopted nearly verbatim from the Ohio constitution and received little or no discussion before adoption. R. Twomley, The Indiana Bill of Rights, 20 Ind L J 211-212 (1945); 7 Swindler, Sources and Documents of United States Constitutions 554 (1978).
A thorough history and analysis of the “right to be heard by himself’ clause of Article I, section 11, is contained in the concurring opinion of Lent, J., in State v. Douglas, 292 Or 516, 527-536, 641 P2d 561 (1982).
This limitation on the right to counsel was described and criticized by Blackstone as follows:
“When the jury is sworn, if it be a cause of any consequence, the indictment is usually opened, and the evidence marshalled, examined, and enforced by the counsel for the crown, or prosecution. But it is a settled rule at common law, that no counsel shall be allowed a prisoner upon his *327trial, upon the general issue, in any capital crime, unless some point of law shall arise proper to be debated. A rule, which (however it may be palliated under cover of that noble declaration of the law, when rightly understood, that the judge shall be counsel for the prisoner; that is, shall see that the proceedings against him are legal and strictly regular) seems to be not at all of a piece with the rest of the humane treatment of prisoners by the English law. * * * And the judges themselves are so sensible of this defect, that they never scruple to allow a prisoner counsel to instruct him what questions to ask, or even to ask questions for him, with respect to matters of fact: for as to matters of law, arising on the trial, they are entitled to the assistance of counsel. * * *. ******
“Upon the trial of issues which do not turn upon the question of guilty or not guilty, but upon collateral facts, prisoners under a capital charge, whether for treason or felony, always were entitled to the full assistance of counsel. * * * It is very extraordinary that the law of England should have denied the assistance of counsel, when it is wanted most, viz. to defend the life, the honor, and all the property of an individual. It is the extension of that maxim of natural equity, that every one shall be heard in his own cause, that warrants the admission of hired advocates in courts of justice; for there is much greater inequality in the powers of explanation and persuasion in the natural state of the human mind, than when it is improved by education and experience.” 4 Blackstone’s Commentaries 355-367. (Footnotes omitted; emphasis in original.)
See also, F. Rackow, The Right to Counsel: English and American Precedents, Wm & Mary Qtly, 3d Ser, XI, 3-12 (1954).
The Massachusetts Body of Liberties served as a model for the 1683 New York Charter of Liberties and the 1701 Pennsylvania Charter of Privileges.
Note that the New York Charter of Liberties contained no provision concerning the defendant’s right to counsel. Also note that an early Pennsylvania document, the 1682 “Pennsylvania Frame of Government and Laws Agreed Upon *328in England &c” provided, as one of the “Laws Agreed Upon in England,” that “in all courts all persons of all persuasions may freely appear in their own way, and according to their own manner, and there personally plead their own cause themselves, or, if unable, by their friends.” (Emphasis added.) 1 Schwartz, The Bill of Rights: A Documentary History 51, 162 et seq (1971). It is significant that the Pennsylvania document was authored by William Penn, who was himself subjected to a political trial in England, which was conducted without defense counsel or witnesses (although Penn and his co-defendant were allowed to freely speak, although not under oath). The future Pennsylvania colonists were concerned, even prior to leaving England, with the need to have another plead one’s cause before the court, as incident to the right to “appear” on one’s own behalf. The Frame of Government of 1682 was repealed and replaced by the Charter of Privileges of 1701, also associated with William Penn, which provided, in Article V, that “all criminals shall have the same privileges of Witnesses and Council as their Prosecutors.” B. Schwartz, The Great Rights of Mankind 49 (1977).
An express provision for the right to counsel appeared in the following revolutionary constitutions (which were adopted by the people, through elected conventions, to replace colonial charters): Pennsylvania Declaration of Rights, Art IX (1776) (“That in all prosecutions for criminal offenses, a man hath a right to be heard by himself and his council”); Delaware Declaration of Rights § 14 (1776) (“That in all prosecutions for criminal offences, every man hath the right * * * to be allowed counsel”); Maryland Declaration of Rights, Art XIX (1776) (“That, in all criminal prosecutions, every man hath a right * * * to be allowed counsel”); New York Constitution, Art XXXIV (1777) (“that in every trial on impeachment, or indictment for crimes or misdemeanors, the party impeached or indicted shall be allowed counsel”); Vermont Declaration of Rights § X (1777) (“That in all prosecutions for criminal offences, a man hath a right to be heard, by himself and his counsel”); Massachusetts Declaration of Rights, Part I, Art § XII (1780), New Hampshire Bill of Rights, Art XV (1783) (“And every subject shall have a right to produce all proofs, that may be favorable to him, * * * and to be fully heard in his defence by himself, or his council, at his election”). R. Clinton, The Right to Present a Defense: An Emergent Constitutional Guarantee in Criminal Trials, 9 Ind L Rev 713, 729-730 (1976); 1 Schwartz, The Bill of Rights: A Documentary History 231-375 (1971). The right to counsel was also granted by later constitutions and statutes which predated the federal bill of rights. See Powell v. Alabama, supra, 287 US at 61-65; State v. Douglas, 292 Or 516, 527-528, 641 P2d 561 (1982) (Lent, J., concurring); F. Rackow, The Right to Counsel: English and American Precedents, Wm & Mary Qtly, 3d Ser, XI, 12-20 (1954).
For example, New York and Rhode Island counsel could only address points of law. In Massachusetts, as noted above, the exercise of the right was only limited to one who found himself “unfit to plead his owne cause.” Clinton, supra at 723-724.
The limited right to counsel afforded a criminal defendant in colonial New York was described as follows:
*329“* * * [I]n this field few forensic battles were fought, chiefly because counsel was only occasionally employed in criminal cases. Attorneys appeared for defendants in Dongan’s time, but it is apparent from the sources that the restrictions of English law respecting the right to counsel were followed. That is to say, only on points of law could counsel appear in felony cases, and there is no evidence that the colonial judges indulged prisoners beyond this limit as sometimes occurred in England. In misdemeanor cases, the liberty of defendant to be represented at all stages of the proceedings was respected, and in the provincial court minutes are numerous instances where counsel made appearances, entered pleas, argued motions and the like.” J. Goebel, Jr. & T. Naughten, Law Enforcement in Colonial New York 573-574 (1944). (Footnotes omitted.)
Rhode Island, in its code of 1647, provided that:
«* * * [i]t shall be the lawful privilege of any person that is indicted, to procure an attorney to plead any poynt of law that may make for the clearing of his innoeencye.” L. Levy, Origins of The Fifth Amendment: The Right Against Self-Incrimination 356 (1968).
The case is often cited as the case establishing the proposition that truth is a defense to libel. The trial is described in detail by Julius Marke in Vignettes of Legal History, 224-240 (1965), and by Irving Brant in The Bill of Rights, 175-182 (1965).
The ratifying conventions of eight states officially or unofficially proposed bills of rights as amendments to the federal constitution. 2 Schwartz, supra at 983 (1971). Three states included an express “right to counsel” in their proposed amendments. The first was Pennsylvania, where the minority issued an “Address and Reasons of Dissent,” which was widely disseminated and which sought to grant the defendant “in all capital and criminal prosecutions * * * a right * * * to be heard by himself and his counsel.” Id at 627, 658. Virginia and North Carolina proposed bills of rights which would grant a criminal defendant the right “to be allowed counsel in his favor.” Id at 841, 967. The New York convention included the following provision as part of the official declaration of rights: “That in all Criminal Prosecutions, the Accused ought to * * * have the means of producing his Witnesses and the assistance of Council for his defense.” Id at 911-918.
The Supreme Court, in Gideon v. Wainwright, 372 US 335, 83 S Ct 792, 9 L Ed 2d 799 (1963), held that the right to the assistance of counsel is a fundamental right, essential to a fair trial. Consistent with Gideon, the Supreme Court has held that the defendant has a right to counsel at sentencing on a guilty plea, Townsend v. Burke, 334 US 736, 68 S Ct 1252, 92 L Ed 1690 (1948); at a probation revocation hearing, Mempa v. Rhay, 389 US 128, 88 S Ct 254, 19 L Ed 2d 336 (1967); at an arraignment, Hamilton v. Alabama, 368 US 52, 82 S Ct 157, 7 L Ed 2d 114 (1961); at a preliminary hearing, Coleman v. Alabama, 399 US 1, 90 S Ct 1999, 26 L Ed 2d 387 (1970), and at a lineup, US v. Wade, 388 US 218, 230-231, 87 S Ct 1926, 18 L Ed 2d 114 (1967).
Shepard, v. Bowe, 250 Or 288, 442 P2d 238 (1968); State ex rel Ott v. Cushing, 289 Or 695, 617 P2d 610 (1980), and State ex rel Ott v. Cushing, 291 Or 355, 630 P2d 861 (1981), all involved court-ordered psychiatric pretrial examinations on behalf of the state and in all of those cases the defendant’s attorney was permitted by the trial court to attend.
The separate dissenting opinion of Campbell, J., points out further practical reasons why no constitutional right to counsel exists in this situation. The most puzzling aspect of the majority opinion is its inability to point to any significant reason why an attorney’s attendance is or may be necessary at presentence interviews. The majority opinion may possess logical symmetry (Major premise: A defendant is entitled to attendance of counsel at a sentencing proceeding. Minor premise: The presentence interview is a part of the sentencing proceeding. Conclusion: Therefore a defendant is entitled to the attendance of counsel at a presentence interview), but its conclusion has an Achilles heel — an inability to state why its deduction possesses good sense.