dissenting.
I dissent. I would overrule Shepard v. Bowe, 250 Or 288, 442 P2d 238 (1968), because I believe that when the defendant raises an insanity defense the state’s psychiatrist must be allowed to conduct an examination of the defendant which is just as complete and thorough as that which defendant’s own expert conducts.
In the recent case of State ex rel Johnson v. Richardson, 276 Or 325, 327-329, 555 P2d 202 (1976), this court stated that "* * * we now have doubt whether our decision in Shepard v. Bowe was correct.” This doubt was a recognition of the difficult position in which the state is placed if its psychiatrist cannot inquire into the defendant’s conduct and his thoughts and feelings at the time of the commission of the alleged crime. Such a situation seriously impairs the ability of psychiatrists to form a reliable opinion as to whether the defendant was suffering from a mental disease or defect at the time of the conduct in question. Correspondingly, the rule of Shepard v. Bowe not only gives the defendant and his experts an unfair advantage, but, by impairing the quality of the evidence presented at trial, it also undermines the reliability of the whole fact-finding process and enhances the possibility of a miscarriage of justice.
In Shepard v. Bowe, supra, this court concluded that no better alternative was available if the defendant’s privilege against self-incrimination was to receive adequate protection. I believe that this conclusion was wrong, for it seems to me that the defendant’s *42fifth amendment privilege1 can be adequately protected by preventing the introduction into evidence of any statements made by the defendant to the psychiatrist which may relate to the circumstances or events surrounding the commission of the crime. I believe that the state’s psychiatrist, as well as the defendant’s, should be allowed to interview the defendant fully and to ask him questions concerning his acts, thoughts, feelings, motivation and general mental condition at the time of the incident in question. If the psychiatrist is not allowed to testify to any statements relating to the issue of guilt — unless, of course, the defendánt has already admitted the crime or otherwise introduced substantially the same evidence — the defendant’s fifth amendment privilege will not be impaired. !
This is the rule which has been adopted by the federal courts and it has been applied in nearly every circuit. See, e.g., United States v. Baird, 414 F2d 700 (2d Cir 1969), cert. denied 396 US 1005 (1970); United States v. Albright, 388 F2d 719 (4th Cir 1968); United States v. Cohen, 530 F2d 43 (5th Cir), cert. denied 429 US 855, 97 S Ct 149, 50 LEd 2d 130 (1976); United States v. Bohle, 445 F2d 54 (7th Cir 1971); United States v. Reifstek, 535 F2d 1030 (8th Cir 1976); United States v. Malcolm, 475 F2d 420 (9th Cir 1973); United States v. Julian, 469 F2d 371 (10th Cir 1972); Ed-monds v. United States, 260 F2d 474 (DC Cir 1958).2 *43Originally, the rule developed as a matter of common law, but it has recently been codified by statute. See Rule 12.2(c) of the Federal Rules of Criminal Procedure:
"(c) Psychiatric Examination. In an appropriate case the court may, upon motion of the attorney for the government, order the defendant to submit to a psychiatric examination by a psychiatrist designated for this purpose in the order of the court. No statement made by the accused in the course of any examination provided for by this rule, whether the examination shall be with or without the consent of the accused, shall be admitted in evidence against the accused on the issue of guilt in any criminal proceeding.”
In adopting this position, the federal courts have relied upon the principles of substantial fairness and the maintenance of a proper state/individual balance at trial.3 See, e.g., United States v. Albright, supra at 724. Several of those courts have quoted from the following language in State v. Whitlow, 45 NJ 3, 210 A2d 763, 767, 770 (1965):
"* * * To allow the accused to obtain his own expert, and after a private and unlimited conference with him and examination by him, to plead insanity, and then put forward the privilege against self-incrimination to frustrate like activities by the prosecution is to balance the competing interests unfairly and disproportionately against the public. Most states through their legislatures have sought to achieve a proper balance by authorizing or requiring psychiatric examination of persons charged with crime when the appropriate court has learned of their insanity or claim of it. See Annotation, 32 A.L.R.2d 434 (1953); Note, Tre-Trial Mental Examination and Commitment; Some Procedural Problems in the District of Columbia,’ 51 Geo. L. J. 143 (1962).
* * * *
*44"* * * An accused who asserts lack of criminal guilt because of insanity and who fully cooperates with psychiatrists engaged by him for examination purposes, answering all questions put to him including those relating to the crime itself, ought not to be allowed to frustrate a similar comprehensive examination by the State by asserting the bar against self-incrimination. He ought not to be able to advance the claim and then make the rules for determination of the claim. Cf. Comment, The Self-Incrimination Privilege: Barrier to Criminal Discovery?,’ 51 Cal. L. Rev. 135 (1963).”4
The federal courts have found that the need for the maintenance of a fair state/individual balance is not overshadowed by the need to safeguard the defendant’s constitutional privilege against self-incrimination. Those courts that have expressly considered the issue have found no inconsistency between the privilege against self-incrimination and the prosecution’s right to a psychiatric examination of any defendant who interposes a defense of insanity. No limits similar to those we adopted in Shepard v. Bowe, supra, have been imposed by the federal courts and none have proven necessary. Those courts have found that as long as all testimony concerning any statements pertaining to the issue of guilt is excluded there can be no significant danger to any of the policies underlying the privilege against self-incrimination. See, e.g., United States v. Bohle, supra at 66-67:
"Such an examination does not violate the Fifth Amendment privilege, because its sole purpose is to enable an expert to form an opinion as to defendant’s mental capacity to form a criminal intent. It is not intended to aid in the establishment of facts showing that defendant committed certain acts constituting a crime. It cannot be so used, for it is impermissible to introduce into evidence on the issue of guilt any state*45ment made by the defendant during the course of such an examination. We note that in the instant case the trial court specifically ruled in granting the examination that 'any testimony predicated upon this evaluation will go solely on the issue of insanity or sanity, and no other issue in this case.’ The rights of the defendant are fully protected by this exclusionary rule.”
See also United States v. Albright, supra at 725:
"* * * [T]he purpose of the examination is not to determine whether a defendant did or did not do the criminal acts charged, but whether he possessed the requisite mental capacity to be criminally responsible therefor, if other proof establishes that he did do them. So limited, we find nothing in the examination, over a defendant’s objection, to violate a defendant’s privilege against self-incrimination.”
An exclusionary rule such as that applied by the federal courts is not a novel concept in our criminal justice system, and its administration should not prove to be unduly burdensome either at the trial level or on appeal. Indeed, the federal cases which have been decided to date indicate that those courts have experienced little difficulty of any kind in applying this rule over the past several decades. See, e.g., United States v. Bohle, supra at 67; United States v. Baird, supra at 712. Therefore, despite the fears expressed by the majority in rejecting this formula, I see no justification for anticipating any undue difficulty in applying the federal rule in this state.
Significantly, in his amicus brief in this case, the state’s public defender has urged this court to adopt a rule similar to that set forth in Rule 12.2(c) of the Federal Rules of Criminal Procedure if we are to make any change in this area. He characterizes this federal rule as "an excellent statute, an excellent model, and it essentially solves the problem [of safeguarding the privilege against self-incrimination].” Basically the same rule is suggested by the attorney general’s office. Under these circumstances, there seems little reason for us to reaffirm Shepard v. Bowe, supra, and thereby continue to frustrate "the right of the people, as *46represented by the state, to present competent, persuasive evidence on the defense raised by the defendant.” State ex rel Johnson v. Richardson, supra at 329.
The difficulties of following the present rule are well documented in the case which is presently before us. Two psychiatrists testified at the hearing on the state’s motions for a complete psychiatric examination and both stressed the importance of a complete psychiatric interview. Their conclusion is supported by our previous cases and by other authorities as well. See State ex rel Johnson v. Dale, 277 Or 359, 365, 560 P2d 650 (1977); State ex rel Johnson v. Richardson, supra; Rollerson v. United States, 343 F2d 269, 274 (DC Cir 1964); Krash, The Durham Rule and Judicial Administration of the Insanity Defense in the District of Columbia, 70 Yale L J 905, 918 (1961); Danforth, Death Knell for Pre-Trial Mental Examination, 19 Rut L Rev 489 (1965). One of the psychiatrists who testified in this case related the difficulties of reaching a reliable conclusion concerning the defendant’s sanity at the time of the incident when he wasn’t permitted to question the defendant about that period and then aptly compared that situation to "watching a football game [and] not seeing the last quarter. You don’t know really how it came out.”
Even more significant, however, in the opinion of both doctors, were the difficulties which arise when the defendant, as in this case, also interposes a defense of extreme emotional disturbance. Such a defense does not presuppose an ongoing mental illness or defect but merely a temporary disturbance in an otherwise normal individual. One doctor noted that extreme emotional disturbance is "very likely to come on within hours or minutes of the incident,” and that "if you cannot question them about that particular segment of time, it creates serious drawbacks, serious impairment.”
In my view, and in light of these considerations, it simply does not make sense to allow a defendant to *47raise the defense of extreme emotional disturbance and then allow him to frustrate any meaningful inquiry into the actual existence of that alleged disturbance during the one period which is most relevant and, indeed, crucial. Moreover, at least under present law, the state’s difficulties are further exacerbated because, once the issue is properly raised, the prosecution has the burden of proving the absence of extreme emotional disturbance at the time of the crime. See State v. Keys, 25 Or App 15, 548 P2d 205 (1976). If the state is to be required to shoulder that burden of proof, common ordinary fairness requires that it be given access to the only information which will enable it to do so. As the court stated in United States v. Cohen, supra at 47-48:
"Since any statement about the offense itself could be suppressed, a rule forbidding compelled examinations would prevent no threatened evil and the government will seldom have a satisfactory method of meeting defendant’s proof on the issue of sanity except by the testimony of a psychiatrist it selects — including, perhaps, the testimony of psychiatric experts offered by him — who has had the opportunity to form a reliable opinion by examining the accused. To hold that compelled psychiatric examinations are forbidden because sanity is an element of the offense and that the privilege against self-incrimination prohibits compulsory elicitation of statements going to an element of the offense would be confining ourselves within an analytical prison. * * *.”
In summary, I would overrule Shepard v. Bowe, supra, and hold that a defendant who seeks to introduce expert testimony on the issue of his sanity can and should be required to submit to a complete psychiatric examination by a psychiatrist of the state’s choosing. No statements made by the accused in the course of this examination which relate to the events and circumstances surrounding the crime could be admitted into evidence unless the defendant has admitted the crime or otherwise introduced similar evidence. Similarly, any other evidence relating to the issue of guilt which is discovered by the prosecution as *48a result of the examination should be excluded as well.5 The administration of this kind of rulé in the federal courts has demonstrated that such a format serves to protect the legitimate interests of both the defendant and the prosecution and promotes the maintenance of a fair state/individual balance at trial.
Tongue, J., and Bryson, J., join in this dissent.See also Oregon Const. Art. I, § 12. In the absence of some important policy reason for giving a broader interpretation to an Oregon constitutional provision than that which has been applied to an essentially parallel federal constitutional provision, we are ordinarily not inclined to do so. See Tupper v. Fairview Hospital, 276 Or 657, 664 n. 2, 556 P2d 1340 (1976). See also State ex rel Johnson v. Richardson, 276 Or 325, 328, 555 P2d 202 (1976); State v. Florence, 270 Or 169, 183, 527 P2d 1202 (1974); Note, The New Federalism: Toward a Principled Interpretation of the State Constitution, 29 Stan L Rev 297, 316-19 (1977).
Only one jurisdiction, the Third Circuit, has expressed any doubt that the statements elicited in a compelled psychiatric examination could constitutionally be used to establish sanity, United States v. Alvarez, 519 F2d 1036 (3d Cir 1975), but that court found it unnecessary to decide that issue in the case then before it. Id. at 1042. It should be pointed out, however, that under federal law, unlike Oregon law, sanity is actually an element of the substantive offense which the prosecution is required to prove. 1
Sometimes this concept is expressed in terms of an estoppel or waiver theory, but such theories must ultimately rely on these same underlying principles. See, e.g., United States v. Malcolm, 475 F2d 420, 425 (9th Cir 1973); United States v. Baird, 414 F2d 700, 707, 709 (2d Cir 1969); Pope v. United States, 372 F2d 710, 721 (8th Cir 1967), vacated and remanded on other grounds, 392 US 651 (1968).
Other federal cases have expressed similar sentiments. See, e.g., United States v. Reifstek, 535 F2d 1030 (8th Cir 1976):
"It would violate judicial common sense to permit a defendant to invoke the defense of insanity and foreclose the Government from the benefit of a mental examination to meet this issue.” 535 F2d at 1034, quoting Alexander v. United States, 380 F2d 33, 39 (8th Cir 1967).
Although no federal court has yet been called upon to address this specific issue, I would hold that the exclusionary rule must apply not only to the use of defendant’s own statements but also to any other evidence which the prosecution discovers as a result of its knowledge of the content of such statements. Cf. Wong Sun v. United States, 371 US 471, 83 S Ct 407, 9 L Ed 2d 441 (1963); Silverthorne Lumber Co. v. United States, 251 US 385, 40 S Ct 182, 64 L Ed 319 (1920); Gladden v. Holland, 366 F2d 580 (9th Cir 1966). However, it is probable that such situations will not i occur too frequently, for the defendant who relies upon a defense of insanity will usually admit the commission of the acts constituting the offense and assert his lack of responsibility in a manner similar to a civil confession and avoidance.