dissenting.
The majority opinion holds that this case raises a question of state constitutional law and proceeds to decide it on that basis. However, this appeal raises no issue of jury impartiality pursuant to Article I, section 11, of the Oregon Constitution, and can only be rationally decided under the Due Process Clause of the federal constitution.1
Regardless of how it is initially framed, the majority opinion ultimately centers on a federal due process analysis with the majority of its precedent arising out of due process cases. As the court noted in State v. Clark, 291 Or 231, 235 n 4, 630 P2d 810, cert den 454 US 1084, 102 S Ct 640, 70 L Ed 2d 619 (1981), “ ‘due process’ must refer to [the] federal clause and must be supported by interpretations of the clause in decisions of the United States Supreme Court or of other courts based on such decisions, since the phrase does not appear in the Oregon Constitution.” 291 Or at 235 n 4. Although the majority takes an incorrect and unnecessary detour in its discussion of the Oregon Constitution, it ultimately analyzes the issue in its correct federal due process context.
*604In that setting, the majority opinion centers on whether giving a consequences instruction over the objections of defendant is fundamentally fair. Although I will subsequently address the question of fundamental fairness, I do not believe this issue is correctly analyzed simply by deciding whether it is fundamentally fair.
The appropriate analysis: (1) identifies the right in question; (2) determines whether that right is fundamental; and, if so, (3) decides whether there is a reasonable likelihood that the jury applied the instruction in a manner that violated that fundamental right. See Victor v. Nebraska, 511 US 1, 114 S Ct 1239, 127 L Ed 2d 583 (1994) (applying this analysis to instruction defining reasonable doubt).
The Due Process Clause protects the rights of a criminal defendant in a state court. Bartz v. State of Oregon, 314 Or 353, 367, 839 P2d 217 (1992). Many procedural rights are “derived from their nature as procedures that are fundamental within the context of a criminal proceeding.” Id.
“Examples include the right to have the state carry the burden of proof regarding all essential elements of an offense, Mullaney v. Wilbur, 421 US 684, 95 S Ct 1881, 44 L Ed 2d 508 (1975), and the right to have guilt proved beyond a reasonable doubt, In re Winship, 397 US 358, 90 S Ct 1068, 25 L Ed 2d 368 (1970).” Id. at 367-68.
In this case, defendant argues that the trial court’s instruction to the jury regarding the consequences of a guilty except for insanity verdict “unconstitutionally directs and suggests to the jury that you should and could consider the disposition of the charge in its deliberations.” Thus, the “right” in question is defendant’s right that the jury not be permitted to consider the possible consequences of its verdict. However, to be in violation of due process, that right must be one that violates those “fundamental conceptions of justice which lie at the base of our civil and political institutions.” Dowling v. United States, 493 US 342, 353, 110 S Ct 668, 107 L Ed 2d 708 (1990) (citations omitted); see Donnell v. DeChristoforo, 416 US 637, 643, 94 S Ct 1868, 40 L Ed 2d 431 (1974) (explaining that “not every trial error or infirmity which might call for application of supervisory powers correspondingly constitutes a ‘failure to observe that fundamental *605fairness essential to the very concept of justice’ ” (quoting Lisenba v. California, 314 US 219, 236, 62 S Ct 280, 86 L Ed 166 (1941)).
It is the common-law rule in every state and federal court that the jury should not consider what sentence might be imposed in reaching its verdict. See Shannon v. United States, 512 US 573, 114 S Ct 2419, 129 L Ed 2d 459 (1994). However, no court that I am aware of has been presented with the issue of whether that common-law rule constitutes a fundamental right requiring constitutional protection. Simply because every jurisdiction follows the common-law rule does not mean it would be a violation of due process for a state to pass a law that allows a jury to consider the consequences of its verdict. See, e.g., Leland v. Oregon, 343 US 790, 72 S Ct 1002, 96 L Ed 1302 (1952) (upholding an Oregon law, on due process grounds that required that a defendant prove the defense of insanity beyond a reasonable doubt even though Oregon was the only state that required that burden of proof).
Ultimately, I am not convinced that the right in question here either is or is not a fundamental one. It may be. The majority opinion, however, finds the instruction unconstitutional without first even addressing the issue. That is a fundamental error in the majority opinion.
Assuming that it is a fundamental right, the next question is whether there is a “reasonable likelihood” that the jurors applied the instructions in a manner that violated due process. In Victor, the Court first pointed out that due process requires the government prove beyond a reasonable doubt every element of a charged offense, see Winship, 397 US at 364 (holding that the reasonable doubt standard is a fundamental right), and then proceeded to identify the issue as whether the instruction given in that case violated that right. The test formulated by the Court was whether there was a “reasonable likelihood” that the jurors who decided the defendant’s guilt applied the instructions in a manner that violated due process.2 511 US at 4. In other words, when an *606instruction is examined as to whether it implicitly violates an established fundamental right, it is not enough that the instruction “may have” or “could have” been interpreted in an unconstitutional manner. But rather, it must be reasonably likely that it was interpreted in that manner.3
The “reasonable likelihood” test has not been limited to jury instructions defining reasonable doubt. In Boyde v. California, 494 US 370, 380, 110 S Ct 1190, 108 L Ed 2d 316 (1990), the challenged instruction was alleged by the defendant to be ambiguous and subject to an erroneous interpretation precluding the jury from considering constitutionally relevant evidence. The Court held: “We think the proper inquiry in such a case is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence.”Id. at 381. Federal and state courts also apply the “reasonable likelihood” test. See, e.g., Smith v. Horn, 120 F3d 400, 411 (3rd Cir 1997) (applying the “reasonable likelihood” test to an instruction held to allow conviction by the state without proving intent beyond a reasonable doubt); State v. Lohmeier, 205 Wis2d 183, 193, 556 NW2d 90 (1996) (‘We conclude that the proper standard for Wisconsin courts to apply when a defendant contends that the interplay of legally correct instructions impermissibly misled the jury is whether there is a reasonable likelihood that the jury applied the challenged instructions in a manner that violates the constitution.”); Petition of Benn, 134 Wash2d 868, 952 P2d 116 (1998) (applying the reasonable likelihood test).
*607Additionally, in applying the “reasonable likelihood” test, the Court has consistently stressed that “a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge.” Boyde, 494 US at 378. Thus, the precise legal issue in this case should be, assuming there is a fundamental right in question, whether there is a reasonable likelihood that the jurors applied the instructions as a whole in a way that the possible consequences of its verdict were considered.
In this case, 29 pages of jury instructions were read and provided to the jury, including the consequences instruction in question here. Those instructions included:
“Do not consider what sentence might be imposed by the Court if this defendant is found guilty.”
“Do not allow bias, sympathy or prejudice any place in your deliberations. Do not decide this case on guesswork, conjecture or speculation.”
To hold that there is a “reasonable likelihood” that this jury applied the instructions in an unconstitutional manner, by considering the consequences of its verdict, would require a finding that the jury ignored both these charges. However, both the United States Supreme Court and the Oregon Supreme Court have repeatedly held that juries are assumed to follow the instructions. See, e.g., State v. Walton, 311 Or 223, 250, 809 P2d 81 (1991); Greer v. Miller, 483 US 756, 766 n 8, 107 S Ct 3102, 97 L Ed 2d 618 (1987); but see Simmons v. South Carolina, 512 US 154, 171, 114 S Ct 2187, 129 L Ed 2d 133 (1994) (reaffirming general rule but saying “[W]e have recognized that in some circumstances ‘the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitation of the jury system cannot be ignored.’ ” (quoting Bruton v. United States, 391 US 123, 135, 88 S Ct 1620, 20 L Ed 2d 476 (1968)).
In this case, we should abide by that general rule and assume that the jury followed the instructions and did not consider the possible consequences of its verdict. It follows that there is not a “reasonable likelihood” that this jury *608applied the instructions given in this case, viewed as a whole, in an unconstitutional manner.
The majority opinion relies solely on the ‘fundamental fairness” test for due process.4 While far more basic, and I believe wrong in this case, even under that test the instructions given were not unconstitutional. The remainder of this dissent is based on the premise that a fundamental fairness approach is the correct test. As a preliminary matter, however, further explanation of the meaning of fundamental fairness is warranted. Aside from those rights specifically enumerated in the Bill of Rights, the category of infractions that violate fundamental fairness is very narrow. See Dowling, 493 US at 353. I agree with Judge DeMuniz’s dissent in State v. Cookman, 127 Or App 283, 296, 873 P2d 335 (1994), affd 324 Or 19, 920 P2d 1086 (1996), that to declare a statute unconstitutional requires more than it being “just not fair.” To be fundamentally unfair, the instruction must “violate[ ] those fundamental conceptions of justice that lie at the base of our civil and political institutions,’ and that define the community sense of fair play and decency.’ ” Dowling, 493 US at 353 (citations omitted). Furthermore, in order to declare a denial of fundamental fairness, “we must find that the absence of that fairness fatally infected the trial; the acts complained of must be of such quality as necessarily prevents a fair trial.” State v. Huffman, 65 Or App 594, 602, 672 P2d 1351 (1983) (quoting United States v. Valenzuela-Bernal, 458 US 858, 872, 102 S Ct 3440, 73 L Ed 2d 1193 (1982)).
With this understanding of fundamental fairness, the majority opinion implicitly holds that: (1) a jury instruction that defines the statutorily mandated procedures that attach to a defendant on a finding of guilty except for insanity violates those fundamental conceptions of justice that lie at the base of our civil and political institutions; (2) the jury *609instruction fatally infected the trial; and (3) the jury instruction necessarily prevented a fair trial. I disagree.
The majority opinion is correct that no court has specifically addressed the question of whether giving a consequences instruction over the objection of a defendant violates due process. However, that is not surprising given the almost universal agreement that a consequences instruction benefits the defendant.5 In fact, the only constitutional challenges I am aware of stem from trial courts’ failure to instruct the jury on the consequences.
In Bassik v. Scully, 588 F Supp 895 (EDNY 1984), the defendant argued that due process imposes a general requirement that a jury be informed of the consequences of an insanity verdict. The court held that a federal court should not “blithely assume that there is a high probability that state juries will disregard their oaths and their duty to render a verdict on the basis of the evidence and the law” and that “[i]n view of the weighty factors militating both in favor of and against the use of the charge, we believe that it is clear that the Constitution leaves the states free to decide for themselves whether or not to employ such a charge.” Id. (emphasis supplied). Likewise, in Boykins v. Wainwright, 737 F2d 1539 (11th Cir 1984), cert den 470 US 1059 (1985), the defendant, on a petition for writ of habeas corpus, asserted that he was afforded a fundamentally unfair trial because the trial judge failed to instruct the jury on the consequences of an insanity verdict. The court held that, although the trial court’s refusal was error pursuant to Florida law, the error did not violate fundamental fairness. Id. at 1546. Finally, in Campbell v. Bates, 416 F Supp 1111 (D Mass 1976), in response to a due process argument by the defendant over the failure of the trial court to give a consequences instruction, the court held “there does not appear to be a constitutional underpinning to this argument.” Id. at 1111. Noticeably, in each case the defendant had requested the consequences instruction.
*610Not surprisingly, out of the hundreds of cases dealing with the appropriateness of consequences instructions, all but two, that I am aware of, are the result of a defendant assigning error to the trial court’s failure to instruct the jury.6 Interestingly, in one of those cases, the court found that it was error to give the instruction over the objection of the defendant but proceeded to hold that it was harmless error. See Goad, 364 NW2d at 592. What the Michigan Supreme Court saw as “harmless error” the majority opinion sees as fundamentally unfair. The bottom line is that a consequences instruction is for the benefit of the defendant and the integrity of the jury system. To put this into context, it is essential to understand the evolution of consequences instructions in both state and federal law.
The majority opinion posits that
“the basic rule in Oregon and in most, if not all, other jurisdictions has been that the sentence that a defendant will receive if convicted, and the disposition that will be made of a defendant who is found to have a mental disorder, are not matters for the jury’s consideration, and juries should not be instructed regarding them.” 154 Or App at 595-96.
That is only partially correct and, at best, misleading.
It is true, as I have stated, that every jurisdiction follows the rule that the disposition of a defendant after a verdict should not be a consideration of the jury. However, that does not mean that a jury should not be made aware of the consequences of an insanity verdict. That a jury is aware of the consequences of its decision does not necessarily mean it considered those consequences in reaching its verdict. For *611example, most jurors recognize that a finding of “not guilty” means an accused goes free. A juror’s knowledge of that does not indicate it was considered. Informing the jurors of the consequences is actually an attempt to keep jurors’ ignorance as to those consequences from becoming an impermissible consideration in their decision. In other words, the purpose of the consequence instruction is to achieve the goal that juries will not improperly speculate about the consequences. See U.S. v. Frank, 956 F2d 872, 883 (9th Cir 1991), cert den 506 US 932 (1992) (Hug, J., dissenting) (arguing that “an instruction on the consequences of the verdict preserves, rather than taints or disrupts, the traditional [rule]”).
A further indication that a consequences instruction is for the benefit of the defendant and the integrity of the jury system is found in recommendations of the American Bar Association. Standard 7-6.8 of the ABA’s Criminal Justice Mental Health Standards provides: “The court should instruct the jury as to the dispositional consequences of a verdict of not guilty by reason of mental nonresponsibility * * In commentary, the ABA explained its reasoning:
“[DJespite instructions cautioning them to consider only the evidence they have heard, jurors who are not informed about dispositional consequences will speculate about the practical results of a nonresponsibility verdict and, in ignorance of reality, will convict persons who are not criminally responsible in order to protect society. Jurors surely know, without being told, what happens to most convicted offenders, as well as defendants who are acquitted outright; the proposed instruction provides the same level of knowledge with respect to the fate of persons acquitted by reason of mental nonresponsibility * * *.
“[CJommon sense and policy considerations must provide guidance. Providing for an instruction seems the most sensible approach given the potential for prejudice to defendants when the alternative course is followed. Particularly in cases in which defendants are charged with violent crimes * * *, juries need to be told about the effect of a finding of mental nonresponsibility if the possibility of a serious injustice is to be avoided.” Id. (emphasis supplied).
The growing majority trend appears to agree substantially with the ABA’s position. For instance, no state or *612federal district, that I am aware of, flatly prohibits a consequences instruction.7 At least 20 states have held that it is not reversible error to refuse to give a consequences instructions.8 See generally 81 ALR4th 659, Instructions in State Criminal Case in which Defendant Pleads Insanity as to Hospital Confinement in Event of Acquittal, Thomas M. Fleming, J.D. (1990). At least 25 states allow the instruction in one form or another. See id.; Shannon v. United States, 512 US at 592 (Stevens, J., dissenting). For example, in California, overruling earlier precedent, the rule is that the instruction must be given if requested by the defendant. People v. Moore, 166 Cal App 3d 540, 211 Cal Rptr 856 (1985); People v. Dennis, 169 Cal App 3d 1135, 215 Cal Rptr 750 (1985). Likewise, Colorado reversed earlier precedent and now allows the instruction if requested by a defendant. People v. Thomson, 197 Colo 232, 591 P2d 1031 (1979). Following the same trend, Maryland now allows the instruction when requested by a defendant. Erdman v. State, 315 Md 46, 553 A2d 244 (1989).
Five states that I am aware of statutorily require that a consequences instruction be given: Georgia, Kansas, New York, Oregon and Tennessee. See Ga Code Ann § 17-7-131(b)(3) (Michie 1997); Kan Stat Ann § 22-3428(6) (1997); NY Criminal Procedure Law § 300.10 (McKinney 1998); ORS 161.313; Tenn Code Ann § 33-7-303(e) (1997); Two states require an instruction if requested by the defendant: Hawaii and Missouri. See Haw Rev Stat § 704-402(2) (1997); Mo Rev Stat § 552.030(6) (1997).
In sum, at least half the states either allow or require a consequences instruction. Interestingly, not one of the states that does not allow a consequences instruction has indicated that it is because of any prejudicial effect to the defendant. The rationale, however, behind those states which condone the use of a consequences instruction is instructive. The Utah Supreme Court held:
*613“We are convinced that the risk * * * is substantial, i.e., that a jury may ignore the evidence of insanity if the jury misunderstands the consequences of a verdict of not guilty by reason of insanity and focuses instead on the fear that such a verdict will result in releasing a dangerous person to prey upon society. Freed from confusion and fear as to the practical effect of a verdict of not guilty by reason of insanity, jurors should be able to decide the insanity issue solely on the evidence and law governing the defense.” State v. Shickles, 760 P2d 291, 298 (Utah 1988).
In Maryland, the Court of Appeals held that “the interests of justice, fundamental fairness, common sense, and the weight of authority in those jurisdictions which mandate commitment, support that a dispositional instruction be permitted.” Erdman, 553 A2d at 250 (emphasis supplied).
The bottom line, evident from an examination of law from other states, clearly indicates an almost universal belief that a consequences instruction is for the benefit of the accused. The fact that some states have failed to extend that benefit to criminal defendants gives no weight to the majority opinion’s assertion that a consequences instruction, over defendant’s objection, is unconstitutional.9 In fact, no court has even hinted that the issue raises a constitutional question. Federal law is equally unhelpful to the majority opinion.
The majority opinion’s reliance on Shannon is misplaced. Shannon held only that a consequences instruction is not required. In doing so, the Court reaffirmed the well established common-law rule that “juries are not to consider the consequences of their verdicts.” Id. at 579. However, the Court clearly indicated that under its supervisory powers it could require a consequences instruction and that “Congress certainly could have included a provision requiring the instruction Shannon seeks.” Id. at 587.10
*614The majority opinion relies on Shannon for its contention that a consequences instruction is a two-edged sword. Specifically, it quotes from Shannon: “Instead of encouraging a juror to return an NGI verdict, as Shannon predicts, such information might have the opposite effect — that is, a juror might vote to convict in order to eliminate the possibility that a dangerous defendant could be released after 40 days or less.” Id. at 586 (emphasis supplied). That language, however, is dependent on federal law where a post-verdict hearing must be held within 40 days to determine whether the defendant should be released immediately into society or hospitalized. See 18 USC § 4243(c), (d). Because of that requirement of federal law, the Court noted that an accurate instruction, which included the preceding federal law, would give no assurance that a violent defendant found insane would not go free in the very near future. Id. at 585-86. In other words, the Court recognized the purpose of a consequences instruction, but held that because of the requirements of federal law, that purpose could not be realized. Following that reasoning, the Court concluded that “[u]nder these circumstances, we are reluctant to depart from well-established principles of criminal practice without more explicit guidance from Congress.” Id. at 587.
Shannon stands only for the propositions that a consequences instruction is not required. Recognizing that its holding is dependent on the unique provisions of federal statutory law, I see absolutely no support in Shannon that an instruction given pursuant to state statutory law is unconstitutional. At best, Shannon stands for the proposition that a consequence instruction may not accomplish its goal.
The majority’s reliance on Oregon precedent is equally unpersuasive. For instance, the majority opinion cites State v. Daley, 54 Or 514, 103 P 502 (1909). In that case, the defendant requested an instruction that would have informed the jury that he would be committed to a lunatic *615asylum if found insane. The judge refused that request. The defendant argued that the jury may have been induced to return a verdict of guilty because of possible misconceptions that a verdict of insanity might discharge him into the community. The court held that “no error is committed in refusing to instruct them what the penalty might be.” Id. at 523. Two points from Daley are relevant: First, the defendant requested the instruction; second, the court ruled only that refusing to give the instruction was not error.
Likewise, in State v. Wall, 78 Or App 81, 715 P2d 96 (1985), the question was whether the admission of evidence elicited by the state concerning the disposition of persons found not guilty by reason of insanity prejudiced the defendant. There, the prosecutor, during questioning of a psychiatrist and over objection of the defendant, elicited responses concerning the likelihood that defendant would be released at some point if found not to have an active mental illness. We held that this was error. In dictum, we stated that “it is proper for the court to refuse a defendant’s request to charge the jury regarding the disposition of the defendant in the event of a verdict of not guilty by reason of mental disease or defect.” Wall, 78 Or App at 84-85. It is important to recognize what Daley and Wall did not hold. They did not hold that it would be error for the trial court to give a consequences instruction. Both simply followed the common-law rule. The Oregon Legislature superseded that common-law rule by enacting ORS 161.313, which it has the power to do. The question before us is not whether the legislature made a wise choice, but whether it made an unconstitutional choice.11
*616Ultimately, in answering that question, we are left to examine fundamental conceptions of justice aided by analogous case law. Most relevant is Lakeside v. Oregon, 435 US 333, 98 S Ct 1091, 435 L Ed 2d 319 (1978). In Lakeside, the defendant was charged with escape in the second degree. During his jury trial, the defendant did not testify. Over objection of the defendant, the trial court instructed the jury that it was to make no inferences from his failure to testify. The objection asserted that commenting on his failure to testify was like “waving a red flag in front of the jury.” Id. at 322.
Originally, this court reversed defendant’s conviction, holding that “the better rule is to not give instructions ostensibly designed for defendant’s benefit over the knowledgeable objection of competent defense counsel.” State v. Lakeside, 25 Or App 539, 542, 549 P2d 1287 (1976). The Oregon Supreme Court reversed finding that giving the instruction over the defendant’s objection did not violate his constitutional rights. State v. Lakeside, 277 Or 569, 561 P2d 612 (1977). The United States Supreme Court affirmed.
The defendant’s argument in Lakeside was expressed by the Supreme Court in similar fashion to defendant’s argument here:
“The [defendant] in the present case does not question [that in Oregon, a defendant has an absolute right to require an instruction that the jury should draw no inferences from his failure to testify], nor does he assert that the instruction actually given was in any respect an erroneous statement of the law. His argument is, quite simply, that this protective instruction becomes constitutionally impermissible when given over the defendant’s objection.” 435 US at 338.
The Court noted that the purpose of the instruction is to “remove from the jury’s deliberations any influence of unspoken adverse inferences. It would be strange indeed to conclude that this cautionary instruction violates the very constitutional provision it is intended to protect.” Id. at 339. The Court opined that the defendant’s argument would require indulgence in two doubtful assumptions. First, that the jury would not have noticed that he did not testify; and second, that the jury would “totally disregard” the instruction’s charge that “such a circumstance gives rise to no inference or *617presumption against the defendant, and this must not be considered by you in determining the question of guilt or innocence.” Id. at 322, 325. The Court concluded that “[flederal constitutional law cannot rest on speculative assumptions so dubious as these.” Id. at 326.
The majority opinion dismisses the relevance of Lakeside because: “Unlike the instruction here, only one implication could be found in the terms of that instruction.” 154 Or App at 602 n 6. Obviously, the defendant in Lakeside thought otherwise. I fail to see how “waiving a red flag in front of the jury,” pointing to the fact that defendant did not testify, is any less of a two-edged sword. The similarities between Lakeside and this case should not be so lightly dismissed.
Additionally, the mere fact that there is a potential for prejudice against defendant does not automatically implicate due process. For instance, in Spencer v. Texas, 385 US 554, 87 S Ct 648, 17 L Ed 2d 606 (1967), Texas law required that, pursuant to its recidivist or habitual-criminal statutes, when a jury was read an indictment against a defendant, that indictment must include any prior convictions of the defendant. In that case, the defendant12 was indicted for murder. The indictment, read to the jury, alleged that he had previously been convicted of murder with malice. Later, the jury was instructed that it should not consider the prior conviction as evidence of the defendant’s guilt in the case for which he was being tried.
There, the Court acknowledged that the challenge was based on a “general 'fairness’ approach.” Id. at 565. The Court said:
“[W]e find it impossible to say that because of the possibility of some collateral prejudice the Texas procedure is rendered unconstitutional under the Due Process Clause as it has been interpreted and applied in our past cases. As Mr. Justice Cardozo had occasion to remark, a state rule of law ‘does not run foul of the Fourteenth Amendment because another method may seem to our thinking to be fairer or *618wiser or to give a surer promise of protection to the prisoner at bar.’ ” Id. at 564 (quoting Snyder v. Massachusetts, 291 US 97, 54 S Ct 330, 78 L Ed 674 (1933) (emphasis supplied)).
The Court also noted that a jury is expected to follow limiting instructions and in limiting the scope of evidence to its proper function. Id. at 562. On that issue, it said:
“It would be extravagant in the extreme to take Jackson[13] as evincing a general distrust on the part of this Court of the ability of juries to approach their task responsibly and to sort out discrete issues given to them under proper instruction by the judge in a criminal case, or as standing for the proposition that limiting instructions can never purge the erroneous introduction of evidence or limit evidence to its rightful purpose.” Id. at 565.
The Court acknowledged that the introduction of the past convictions was prejudicial to the defendant. Id. at 563-64. However, it justified that prejudice because the jury is presumed to heed limiting instructions and there was a valid governmental interest — enforcement of habitual offender statutes. Id. at 563.
In this case, the consequences instruction is justified for similar reasons. The jury was given a limiting instruction and there is a valid governmental interest. Here, the state has a valid interest in making sure that juries do not reject insanity defenses based on their own ignorance and fear as to the consequences of an insanity verdict. It cannot be rationally argued that a consequences instruction is remotely as prejudicial to a defendant as informing a jury of past convictions of the same defendant.
Important to the decision in both Lakeside and Spencer, the Court noted its belief and faith that juries can and do heed limiting instructions. Here, as stated, the trial court instructed the jury that it could “not consider what sentence might be imposed by the Court if this defendant is *619found guilty” and “do not decide this case on guesswork, conjecture or speculation.” Defendant’s defense was guilty except for insanity, thus, the court instructed the jury not to consider the consequences of that verdict in its deliberations. Because we presume that the jurors in this case did not consider any possible sentences associated with a guilty verdict in its deliberations, it follows that the rejection of the insanity plea and ultimate conviction was based on the evidence.
The majority relies on Wall to assert that such a limiting instruction was inadequate. However, the facts of Wall are distinguishable. In that case, the following colloquy occurred between the prosecutor and the state’s psychologist:
“[Prosecutor]: Doctor, you’re aware that the state of Oregon must prove after a finding of not responsible because of mental disease or defect that there is an active mental illness in operation to be able to confine a person, are you not?
“[Doctor]: Yes.
“[Prosecutor]: Consequently, if there is no active mental illness, a defendant is able to petition for release, is he not?
“[Doctor]: If there’s no active mental illness, yes, I understand he can do that.
“[Prosecutor]: And are you aware that this Defendant has been informed of that right?
“[Doctor]: I do not know that.
“[Prosecutor]: That would be a motive to want to have a proper mental disease or defect defense, would it not?
“[Doctor]: If a person really is quite familiar with the law, with the medicine, I can imagine, yes, that would be a motive.” Wall, 78 Or App at 83-84.
Considering that exchange, a limiting instruction was certainly too little, too late. However, it clearly demonstrates the reason for Oregon’s acceptance of the common-law rule that a jury should not consider the consequences of its verdict. It is situations similar to Wall that justifies the common-law rule. However, the majority opinion uses a common-law rule *620adopted for the benefit of defendants, combines it with a statutory law enacted for the benefit of defendants, and holds that that law violates the due process of those exact defendants both laws are aimed at protecting. I cannot concur in that result.
With this background in mind, we turn to whether ORS 161.313 was fundamentally unfair to defendant. The first question is whether this instruction “ ‘violates those “fundamental conceptions of justice which lie at the base of our civil and political institutions.” ’ ” Dowling, 493 US at 353. I think the only rational answer is that it does not. The instruction is for the benefit of the defendant and preserves the integrity of the jury system. The majority opinion asserts that a consequences instruction is a two-edged sword.14 However, most criminal procedures, by their very nature, are two-edged swords. Each time a trial court balances the probative value of evidence against the possibility of prejudice to the defendant, the trial court teeters on the edge of a two-edge sword. The integrity of the system depends on the fair balance between the right of society to be safe and the defendant’s right to a fair trial. Ultimately, the goal is a verdict based on the facts and a correct understanding of the law. There is no evidence suggesting that this verdict was not based on the facts and no claim that the instruction misstated the law. I believe this instruction falls within the necessary balance and did not violate defendant’s fundamental rights.
The second question is whether the instruction “fatally infect[ed] the trial” and “necessarily prevented a fair trial.” See Huffman, 65 Or App at 602. Again, the only rational answer is that it did not. Defendant points to no actual prejudice or even an appearance of prejudice. Additionally, pursuant to state law we presume that the jury in this case did not consider the consequences of its decision *621because it was instructed not to. In my opinion, to rule this statute unconstitutional, we must ignore settled law, ignore rational and well reasoned opinions from other jurisdictions, and most unfortunately, ignore common sense.
I dissent.
Edmonds and Landau, JJ., join in this dissent.The majority opinion’s attempt to decide this case pursuant to state constitutional law is, at best, illusory and essentially inserts a due process clause into Oregon’s Constitution via Article I, section 11, when there is none. It relies on State ex rel Ricco v. Biggs, 198 Or 413, 255 P2d 1055 (1953), for the proposition that the right to a fair trial may be analyzed pursuant to Article I, section 11, which provides: “In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury.” In Ricco, the court said that that section means a right to a “fair and impartial trial.” 198 Or at 428. That case, however, was a mandamus action initiated by the defendant seeking a change of venue. In that context, the argument was made that it was impossible to have an impartial jury and a fair trial without a change of venue. Thus, when fairness is predicated on the question of impartiality, it might be appropriate to consider such a challenge based on Article I, section 11. In this case, however, there is no question of impartiality, only fairness. When the question is simply the fairness of criminal procedures, the appropriate analysis centers only on the Due Process Clause of the Fourteenth Amendment. See, e.g., Bartz v. State of Oregon, 314 Or 353, 367-68, 839 P2d 217 (1992). Moreover, pursuant to Article I, section 11, it is impermissible to presume harm to defendant even if there is a potential for prejudice when “nothing in the record casts doubt on the jury’s impartiality.” State v. Busby, 315 Or 292, 301, 844 P2d 897 (1993); see also State v. Guzek, 322 Or 245, 279, 906 P2d 272 (1995) (Graber, J., dissenting) (explaining that the “impartial jury clause * * * does not govern what type of evidence that an impartial jury, once empaneled, may hear or consider”).
In Victor v. Nebraska, 511 US 1, 114 S Ct 1239, 127 L Ed 2d 583 (1994), the court acknowledged some confusion over whether the test was whether the jury “could have” applied the instruction unconstitutionally, or whether there was a *606“reasonable likelihood” that it did apply it unconstitutionally. The court reaffirmed Estelle v. McGuire, 502 US 62, 112 S Ct 475, 116 L Ed 2d 385 (1991), in finding that “reasonable likelihood” was the correct test. Victor, 511 US at 4. In State v. Williams, 313 Or 19, 828 P2d 1006, cert den 506 US 858, 113 S Ct 171, 121 L Ed 2d 118 (1992), the Oregon Supreme Court applied the “could have” test. There, however, the court relied on Cage v. Louisiana, 498 US 39, 111 S Ct 328, 112 L Ed 2d 339 (1990), which was overruled by Victor.
For example, if Oregon passed a law that explicitly provided that a criminal defendant may be convicted by a preponderance of the evidence, that would be, per se, a violation of due process because the reasonable doubt standard is a fundamental right. However, if Oregon passed a law defining reasonable doubt, that instruction could only be successfully challenged if the court finds that there is a “reasonable likelihood” that the jury applied the instruction in a way that allowed for conviction based on a lower standard.
The majority opinion cites State v. Tucker, 315 Or 321, 845 P2d 904 (1993), in support of its use of the fundamental fairness test. However, in that case, the question was whether the trial court’s refusal to give a requested instruction violated the defendant’s fundamental right to be presumed innocent. Id. at 336. As stated, when the question is the constitutionality of a given instruction, the Supreme Court has adopted the “reasonable likelihood” test.
ORS 161.313 was introduced at the request of the Oregon Criminal Defense Lawyers Association. Minutes, Senate Judiciary Committee, June 29,1983, at p 7.
See State v. Huiett, 271 SC 205, 246 SE2d 862 (1978) and People v. Goad, 421 Mich 20, 364 NW2d 584 (1984). In Huiett, defendant was charged with murder for killing a man with an ax. His only defense was insanity. A first trial resulted in a mistrial after a jury was unable to reach a verdict. A second trial was held before the same judge. Unlike the first trial, the judge instructed the jury that if the defendant was found mentally ill, he would be transferred to the state hospital for observation and if the defendant was then or subsequently found not to be mentally ill, he would be released. During that short charge, the trial judge used the word “released” four times and “set free” once. The jury deliberated thirteen minutes and returned a verdict of guilty. The court found, within the facts of that case and with emphasis on the language used, that giving the instruction over the objection of defendant was reversible error.
Even in states and federal districts where consequences instructions have been held to not be required, they are generally allowed in response to prosecutorial or court comments which inappropriately comment on the possibility that a defendant may go free if found insane. Again, strong indication that consequences instructions are for the benefit of the accused.
It is important to recognize that a court holding no error in refusing the instruction is not the same as holding that it is error to give the instruction.
Granted, however, that the opinions and recommendations so far cited in this dissent do not prove that it is constitutional. However, they are instructional as to whether it is fundamentally unfair.
When Congress passed the Insanity Defense Reform Act of 1984,18 USC §§ 4241-4247, it clearly indicated its expectation that juries could be instructed on the consequences of an insanity verdict.
“The Committee endorses the procedure used in the District of Columbia whereby the jury, in a case in which the insanity defense has been raised, may *614be instructed on the effect of a verdict of not guilty by reason of insanity. If the defendant requests that the instruction not be given, it is within the discretion of the court whether to give it or not.” S Rep No 225,98th Cong, 1st Sess (1983), 240.
The Court, however, relied on the plain language of the Act to hold that a consequences instruction was not required.
It is clear to me that the instruction given in this case, pursuant to Uniform Criminal Jury Instruction No. 1122, is not the model of clarity and is probably too long and inclusive. ORS 161.313 simply requires that the jury be instructed “in accordance with ORS 161.327.” The instruction is taken verbatim from ORS 161.327. In my opinion, a better instruction would paraphrase and synthesize that statute into a more “jury friendly” instruction. An instruction similar to that given in Georgia would be preferable. Section 17-7-131(b)(3) of the Georgia Code Annotated provides:
“In all cases in which the defense of insanity is interposed, the trial judge shall charge the jury, in addition to other appropriate charges, the following: (B) I charge you that should you find the defendant guilty but mentally ill at the time of the crime, the defendant will be given over to the Department of Corrections or the Department of Human Resources, as the mental condition of the defendant may warrant.”
The opinion in Spencer combined three separate appeals from the Texas statute. For our purposes it is not necessary to present the separate facts of each case.
13 The court was distinguishing the case of Jackson v. Denno, 378 US 368, 84 S Ct 1774, 12 L Ed 2d 908 (1964), which held unconstitutional a New York law that allowed the trial jury alone to decide the issue of voluntariness of a challenged confession.
The only real support for the majority opinion’s belief that a consequences instruction might prejudice the defendant is Shannon. However, that decision was dependant on federal commitment procedures which, if explained to the jury, might leave the jury with an impression that the defendant might go free in 40 days. The instruction in this case does not infer such prejudice. Furthermore, even in Shannon, the Court suggested that Congress has the power to require a consequences instruction.