dissenting.
The court’s majority makes two substantial changes in the law in order to provide a new sentencing trial in this case. One very significant change is announced in State v. Wagner, 309 Or 5, 786 P2d 93 (1990) (Wagner II), but applies in common to this case, to Wagner’s case and to twenty other *99cases. That change holds that this court has the legislative power to add many, many words to change the meaning and procedural effect of a statute adopted by the initiative, and may do so even though the majority of this court said, two years ago, in State v. Wagner, 305 Or 115, 143-45, 752 P2d 1136 (1988) (Wagner I), that the statute did not contain the ideas which are now added to it by the court.
I do not agree that the ends — providing a new sentencing trial and new appeals — justify the means of adding 100 words of changes to a printed section of the death penalty statute. Rather, I would achieve finality and punishment at this time by imposing a mandatory life sentence under the portion of our statutes which the United States Supreme Court has not brought in question. This is not a case where a gap in a statute is filled in to cover a situation which the legislature overlooked. Nor is it a case where an ambiguous statute is interpreted in a way which makes sense and avoids a potential problem of constitutional proportions. It is a case of the judiciary adding “legislation” to that approved by the legislative branch. This judicial conduct establishes a new and potentially mischievous precedent which I can not join. Accordingly, I dissent from that change in the law.
In this particular case the court’s majority makes a second change, one in the law of evidence, with which I cannot agree. The court changes Oregon evidence law to allow a hearsay statement by “A” as admissible to prove the mental intent of “B” concerning the conduct of “B” 48 to 72 hours after the statement of “A” was uttered. I dissent from this extension of the hearsay exception because it is not in accord with our evidence statutes or our decided cases and because the court majority’s rule will do substantial damage to the reliability of the fact-finding process.
LEGAL BACKGROUND
In 1984 the voters adopted two ballot measures. In the first, the people of Oregon amended this state’s constitution to permit the government to impose death notwithstanding the state’s prior constitutional prohibitions against cruel and unusual punishment and against vengeance as a foundation policy for such punishment. Thus, they recognized that taking the life of a murderer was an act of vengeance, even when the killing was done by the state. They also recognized *100that the government killing of an individual in response to a murder committed by that individual was, in the Oregon value system, a cruel and unusual punishment.
In the second ballot measure, adopted at the same time, the people borrowed a death penalty sentencing scheme from Texas, rather than re-enact the death statutes used in earlier days in Oregon. In 1988, the statute embodied in the ballot measure was upheld by a majority in Wagner I. On certiorari to the United States Supreme Court, that court in 1989 vacated the judgment of this court and remanded the case to us for reconsideration in light of Penry v. Lynaugh, 492 US_, 109 S Ct 2934, 106 L Ed 2d 256 (1989). Wagner v. Oregon, 492 US_, 109 S Ct 3235, 106 L Ed 2d 583 (1989).
In Penry, the Supreme Court found the Texas sentencing formula, copied by Oregon, unsatisfactory for imposing a death sentence because that formula did not permit the jury to use mitigating evidence to decide whether, in that individual instance, death was appropriate. The United States Supreme Court said that, to avoid being cruel and unusual under the federal constitution’s Eighth Amendment, “punishment should be directly related to the personal culpability of the defendant.” 109 S Ct at 2951, 106 L Ed 2d at 284. By vacating the Oregon decision by this court in Wagner I, the Supreme Court said that imposing death based on the procedure used in Oregon was also defective. This defect follows from the limited question format which prevents the jury from expressing for the community the jury’s “reasoned moral response to the defendant’s background, character and crime.” Id. The Court vacated the judgment of death in Penry because it was imposed by a procedure whereby “the jury was not provided with a vehicle for expressing its ‘reasoned moral response’ to that [mitigating] evidence in rendering its sentencing decision.” 109 S Ct at 2952, 106 L Ed 2d at 284. The Penry court decided that instructing the jury to follow the limited procedures set forth in our statute impermissibly limited the jury’s ability to decide for life imprisonment rather than death.
A. Choices for Resentencing
Now that the Wagner case has been returned to this court, Oregon has various policy choices available to it. Those choices may be exercised by local district attorneys, or by this *101court, within the framework of the part of Oregon’s homicide statutes and procedures which the United States Supreme Court has not found to be constitutionally deficient.
1. Finality
As Chief Justice Rehnquist has said, one major concern of the criminal justice system “is to ensure that offenders against the laws of society will be punished, and punished without unreasonable delays.” Rehnquist, Rule of Law, 6 U Ark Little Rock LJ 485, 498 (1983). I would heed that advice to achieve finality of punishment and avoid the unreasonable delays and further appeals inherent in other choices. Article VII (amended), section 3, of the Oregon Constitution provides that this court, knowing the proper final judgment to enter, may enter it. That choice — entering a final sentence now — would also avoid the dangerous course of changing the Oregon law concerning which branch of Oregon government it is that is empowered to write legislation.
2. New Sentencing Trial, New Appeals
The majority does not give such deference to the concept of finality, but instead chooses a course which keeps the defendant’s case and appeals still alive and the punishment for his crime still unfixed.
In my view the majority choice is an example of winning a battle at a price so high to the orderly rule of law that the court risks losing the war against lawlessness.
UNWISE CHANGES IN OREGON LAW
A. The Amendments and Additions to the Statute
I dissent from the drastic revision and lengthy additions to the words of the adopted statute which the majority finds necessary to save the constitutionality of the death penalty procedures of Oregon’s Criminal Code. I agree with the majority that without such revisions, additions, and quite possibly other modifications, Oregon’s procedures for deciding to impose the death penalty do not meet the requirements announced by the United States Supreme Court in Penry v. Lynaugh, supra.
*102I disagree with this court’s amending and adding to the legislation. Rewriting legislation is the job of the legislative branch and is its exclusive prerogative under our system of government.1
The 1984 legislation limited the juries’ consideration of “mitigating circumstances” to one issue — “[w]hether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” ORS 163.150(1)(b)(B)(1987 Replacement Part). This provision first states the issue of future dangerousness as a question for the jury and then immediately states: “In determining this issue, the court shall instruct the jury to consider any mitigating circumstances.” Two other subparagraphs state two other issues for the jury, but neither contains words which permit the jury to consider mitigating circumstances with reference to either of the remaining questions. Indeed, no mention of mitigating circumstances is made in the three jury-question subparagraphs except for the internal reference in the subparagraph about future dangerousness.
1. Extent of the Judicial Amendments
The additions to statute made by this court in Wagner I and II are shown in capitalized letters below. The statute as enacted is shown in lower case letters. The extent of the capitalized additions generally show the presently perceived extent of the constitutional deficiency in the Oregon statute under Penry.
“(l)(a) Upon a finding that the defendant is guilty of aggravated murder, the court, except as otherwise provided in subsection (2) of this section, shall conduct a separate sentencing proceeding to determine whether the defendant shall *103be sentenced to life imprisonment or death. The proceeding shall be conducted in the trial court before the trial jury as soon as practicable OR ANY OTHER JURY EMPANELED AT ANY TIME AFTER GUILT IS DETERMINED IN THE EVENT THAT DEFENDANT SUCCESSFULLY APPEALS. * * *
“(b) Upon the conclusion of the presentation of the evidence, the court shall submit the following issues to the jury:
“(A) Whether the conduct of the defendant that caused the death of the deceased was committed deliberately and with the reasonable expectation that death of the deceased or another would result AND THE JURY SHALL BE INSTRUCTED TO CONSIDER EVIDENCE OF ANY MITIGATING CIRCUMSTANCE ON THIS ISSUE;
“(B) Whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society. In determining this issue, the court shall instruct the jury to consider any mitigating circumstances offered in evidence, including, but not limited to, the defendant’s age, the extent and severity of the defendant’s prior criminal conduct and the extent of the mental and emotional pressure under which the defendant was acting at the time the offense was committed; and
“(C) If raised by the evidence, whether the conduct of the defendant in killing the deceased was unreasonable in response to the provocation, if any, by deceased AND THE JURY SHALL BE INSTRUCTED TO CONSIDER EVIDENCE OF ANY MITIGATING CIRCUMSTANCE ON THIS ISSUE;
“(D) THE JURY SHALL ALSO BE INSTRUCTED AS FOLLOWS: SHOULD DEFENDANT RECEIVE A DEATH SENTENCE? YOU SHOULD ANSWER THIS QUESTION ‘NO’ IF YOU FIND THAT THERE IS ANY ASPECT OF DEFENDANT’S CHARACTER OR BACKGROUND, OR ANY CIRCUMSTANCES OF THE OFFENSE, THAT YOU BELIEVE WOULD JUSTIFY A SENTENCE LESS THAN DEATH.”
Even if I were willing to join in so deeply entering the field of judicial legislation to avoid declaring the unconstitutionality of a statute, the practical wisdom of doing so in this *104case would still seem lacking. It is trae that a majority of Oregon voting citizens adopted the sentencing statute now seen by the United States Supreme Court to be constitutionally unsound in application. But, it is doubtful that a majority of Oregonians would approve of general judicial tampering with our jury system by an appellate court placing new statutory limits on the role of juries selected from the community.
2. Cost of the Judicial Amendments
Also, I believe, the majority of Oregonians should prefer to see the convictions and sentences become final rather than to permit the substantial increased cost and significant added delay before the sentence becomes final which the option of trying to save the statute by judicial legislation necessarily entails. I suspect that the public’s purse and patience are stretched to their limits, that the escalating costs and tedious delays in litigation promoted by judicial legislation to save a statute border on intolerable.
As studies show, the public cost of appeals in a death penalty case exceeds the cost of imprisonment for the rest of the convicted defendant’s natural life.2
3. Delay Created by the Judicial Amendments, Cost of Retrial and Appeal
The simplest of the 22 death penalty cases now pending on appeal in Oregon is Wagner II, supra, wherein the defendant pleaded guilty to aggravated murder committed in June of 1985. A penalty-phase-only jury proceeding was held following Wagner’s guilty plea. The entire proceeding now has to be repeated because of the majority’s addition of 100 words of their own to our statute. This affects 22 separate cases.
*105The cost and delay of repeating the process are both substantial. A review of what has already happened in Wagner I, and a preview of what will happen in Wagner II follows. Defendant Wagner appealed after the first hearing and sentencing. In September 1987, after a voluminous record of the penalty-phase trial was produced, oral arguments were presented in this court. The public paid for both the state’s attorneys and Wagner’s advocates, as our constitution requires. This court produced 122 pages of printed majority and dissenting opinions in February 1988. See State v. Wagner, 305 Or 115, 752 P2d 1136 (1988). Wagner then asked the United States Supreme Court to accept his case.
In the summer of 1989, the United States Supreme Court remanded this case to us, after an appeal for which Oregon’s public paid both sides, because of that court’s decision in Penry v. Lynaugh, supra. The majority now remands the case to the trial court, which it left in 1985, for a new penalty-phase trial to be held under different guidelines than those used in 1985. Assuming that the publicly paid prosecutor continues to seek the death penalty and is successful in that effort, this court can expect to see the case on appeal again in 1990 or 1991, with a new expensive transcript and publicly paid advocates on both sides. From here, of course, it is on to the United States Supreme Court once again, still at public expense, with a possible final decision in 1992 or 1993.
If the Supreme Court lets the sentence stand the next time around, the collateral attacks on the sentence, which may follow at public expense, should be over by eight to ten years from the date of Wagner’s guilty plea. Until then, the public will pay the costs of Wagner’s penitentiary confinement along with the confinement expenses for perhaps, by then, about 100 other Oregon death row inmates.
The other 19 persons now sentenced to death under the flawed procedure may not receive two direct chances at the Supreme Court, as Wagner will, but the cost of transcripts, advocates, and appeals in each of those 19 cases have been enlarged because each had separate trials to determine guilt and each raised trial issues on appeal, none of which were present in Wagner’s guilty plea case.
*106Substantial savings would have resulted had the majority of this court simply adhered to the statute in effect at the time of conviction, which was the statute already presented to and effectively invalidated by the United States Supreme Court. Instead, this court bends its precedents about judicial legislation to the breaking point by changing the statute to make it fit current perceptions about the meaning of the federal constitution.
4. Diminution of Constitutional Separation of Powers
The rationale offered by the majority for why it may make such extensive amendments and additions to the death penalty statute obliterates the constitutional separation of the legislative and judicial branches of our government. The majority says, if the statute does not “preclude” (i.eexpressly forbid) the court’s amendments and additions, there is no limit to what change a court can make in a legislative act.
As if to prove the point, the court cites ORS 174.010, correctly summarizes that statute as providing “a general direction not to add to the terms of a statute,” but then immediately erases the clear meaning of that statute by calling it merely one of the “useful tools for decision” which may be ignored in favor of the majority’s “specific analysis in the first instance.” ORS 174.010 says in direct terms that judges are not to insert “what has been omitted.” Our cases have honored that limit until today. Today the court in effect says: “Why bother with legislation, we can make all the changes in the statutes we want.”
B. Admission of Prejudicial Hearsay
I also dissent from the court’s majority ruling that evidence of an accusatory statement made by a person murdered two or three days later is admissible to prove the “identity” or the “intent” of the assailant.
I have no quarrel with the general exception to the hearsay rule that statements made to one’s physician for the purpose of obtaining treatment are not rendered inadmissible *107simply because they are made outside the courtroom and are offered to prove the truth of the matters asserted. OEC 803(4). However, I think the statement at issue, “I am afraid he [my son-in-law] will kill us both,” fails to come within the guarantees of reliability that form the logical basis for the exception. Nor do I think the declarative accusation, made before the conduct that the prosecution seeks to prove, meets the requirements to qualify for the hearsay exception, let alone passes the probative-value versus unfair-prejudice test in OEC 403.
1. Nature of Diagnosis and Treatment Relationship
The chronology of treatment shows the patient first came to the doctor for treatment not related to fear of the son-in-law, that during a later but regularly scheduled visit the doctor diagnosed the patient as also suffering from situational depression, that a month later, at a regularly scheduled return visit, she made the accusatory statement about fear that defendant would kill her, and that several days later she was killed. The chronology is as follows:
In August of 1985, patient Chatfield was transferred from another doctor to the care of the doctor who later became the witness to her hearsay statement. She came with nine listed ailments, and a medical history of chronic depression. The doctor-witness started treating the multiple conditions with regularly scheduled visits on the 11th day of each month, including October and November, 1985.
On February 11, 1986, she came for a regular visit and stated she was upset “since” her daughter and son-in-law had moved in with her. She mentioned being afraid of his dog, not him. The doctor diagnosed “situational depression” during this visit.
On March 11, 1986, she came for a regular visit. The depression was present to a heightened degree. The statement objected to, but admitted in evidence, was made at this visit. No new diagnosis was made, although a prescription of a drug for depression, which also reduced “anxiety,” was given by the witness-doctor.
*108On March 13 or 14, 1986, patient Chatfield was shot. The doctor did not see, diagnose, or treat her for this injury.
2. Objections to Doctor’s Testimony About the Declaration
Defense counsel objected to the doctor’s recounting what the patient said, two or three days before she was shot, in part, as follows:
“[T]here has to be a trauma that’s being treated which has to arise as a result of some specific action or injury that’s directed toward the deceased, Mrs. Chatfield.”
This ground of objection is sufficient to raise the issue that the patient’s statement to her physician is only admissible as proof of the cause of a past injury and that it is not admissible to prove the way that future injury occurred, after the statement was made, in accordance with the declared opinion or prediction about the future. It also impliedly points out the lack of treatment motivation to tell the truth. Following that ground of objection the trial judge asked the doctor:
Question: “Did Mrs. Chatfield relate any instances of problems with her and Mr. Moen?”
Answer: “Do you want me to elaborate or say ‘yes’ or ‘no’? The answer is ‘no’. I asked her. I said ‘Has he been physically abusive to you?’ She said ‘No.’ * * * But she said, what I was testifying to concerning before, she was afraid he would kill them both.”
Defense counsel also objected that:
“Under this particular exception, 803(4) that generally statements contributing [sic] fault usually are not admissible * * *. The type of statement being elicited from the doctor that’s attributed to the victim Chatfield is a statement of fault * * *. [A]t no time did Mrs. Chatfield say the defendant, Mr. Moen, had struck her physically, assaulted her or threatened to kill her * * *. So I think it is important to make that distinction and because no statements were made to the doctor about that, and because the statements by Mrs. Chatfield were a fault type statement, that it does not fall within the exception and should not be admissible.”
On appeal, the defendant pointed out that the doctor did not specifically rely upon the statement as reasonably *109pertinent to his diagnosis of depression. The doctor diagnosed the situational depression on February 11,1986, and the statement about which he testified over objection, was made to him a month later.
3. Court’s Ruling Admitting Declaration
In overruling the objections, the trial judge said:
“The rationale, of course, is I assume the patient’s intention and desire to be truthful in seeking treatment from a doctor is more apt to be truthful than to falsify a statement when they are seeking medical treatment.
“In this case the doctor’s patient, one of the victims in the homicide, unquestionably went to him for medical care, treatment and the information she gave him was used by the doctor in his prescription and/or advice as to what she should do for her condition of depression which the doctor found to be present.”
The trial judge recognized and ruled on the issue of admissibility under OEC 403, stating:
“I think under those circumstances and weighing the probative value with the possible prejudice affect [sic] that the evidence is admissible.
“I’ll overrule the objection and the doctor may be permitted to testify.”
4. Scope of Rule Against Hearsay and Its Exceptions
OEC 801(3) defines hearsay as an out-of-court statement “offered in evidence to prove the truth of the matter asserted” in the statement. Here, the hearsay statement, “I am afraid my son-in-law will kill us both,” was offered in a trial on an indictment alleging that the son-in-law committed homicide and that he did so “intentionally.” The Oregon Evidence Code states: “Hearsay is not admissible except as provided by [Rules 801 to 806] or as otherwise provided by law.” *110OEC 802. The Legislative Commentary provides: “In any event, the Legislative Assembly intends that hearsay only be admitted pursuant to some statutory or constitutional authority.” Kirkpatrick, Oregon Evidence 347 (1982).
OEC 803 now lists 24 situations where a hearsay declaration is “not excluded” by the general exclusionary rule in OEC 802. The Legislative Commentary indicates that these exceptions do not mandate that an out-of-court declaration is admissible in evidence even where the declaration fits within an exception. As the Legislative Commentary points out:
“The exceptions to the rule against admissibility of hearsay evidence set forth in this rule are phrased in negative terms of non-application of the hearsay rule, rather than in positive terms of admissibility. This is done in order to repel any implication that other grounds for excluding the evidence are eliminated from consideration.” Kirkpatrick, supra, at 350.
The evidence of the out-of-court statement may thus be excluded as not relevant, or as unfairly or highly prejudicial in comparison with the strength of its tendency to prove a fact in issue such as, in this case, identity or intent. Thus, OEC 403 states, in part, “evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice” and for other reasons.
5. Exceptions to Exclusion of Hearsay on Which Majority Relies
The majority in this case relies upon two of the hearsay exceptions and holds that they mandate admissibility of the statement “I am afraid my son-in-law will kill us both.” Those exceptions are for “statements made for purposes of diagnosis or treatment,” OEC 803 (4), and a “statement relating to a startling event or condition,” more commonly called an “excited utterance.” OEC 803(2).
6. Conflicting Reliability Guarantees of Majority’s Exceptions
A moment’s reflection will suggest that these two grounds contradict one another. A person who is so excited that the person utters a spontaneous remark without reflect*111ing upon its effect, as is required to qualify as trustworthy under the excited utterance exception, is not likely to be mindful of or motivated by the knowledge that the statement is being used for the purpose of that person’s diagnosis or treatment, as is required to qualify as trustworthy under that exception. That mutual contradiction of reliability guarantees should be enough reason not to be persuaded of admissibility by a claim that both exceptions support admission of the hearsay.
However, those are two exceptions upon which the majority relies to sustain this capital conviction. Under the majority decision, a trial judge will preside over a re-trial of the penalty phase proceeding where the propriety of letting a jury hear the second-hand out-of-court accusatory statement may come in question again. Therefore, a detailed examination of the statement and the requirements for coming within the exception are now in order.
7. Accusatory Hearsay Statements by a Victim
a. Victim’s Accusatory Hearsay Not Usually Admissible
Taken literally, the statement “I am afraid he will kill us both” expresses a current state of mind, that of a present fear of death and of the person who the declarant states produces the fear. It is also an accusation that the person to whom declarant attributes her fear of death is of a sort or character that she reasonably believes will kill her. Taken in the context of this case, it is a prediction and an accusation of who would be likely to kill her. The majority describes the statement as if it were a declaration about the son-in-law’s past treatment of the declarant. That does not fit, however, with the doctor’s testimony about Mrs. Chatfield’s statement to him. The doctor testified, in answer to questions by the trial judge, as follows:
Question: “Did Mrs. Chatfield relate any instances of problems with her and Mr. Moen?
Answer: “Do you want me to elaborate or say ‘yes’ or ‘no’? The answer is ‘no.’ I asked her. I said ‘Has he been physically abusive to you?’ She said ‘No.’ * * * But *112she said, what I was testifying to concerning before, she was afraid he would kill them both.”
This court has, within the year, unanimously rejected as inadmissible evidence offered by a murder defendant that the victim feared a person, whom the victim named, would kill him. In the unanimous decision in State v. Mendez, 308 Or at 9, 774 P2d 1082 (1989), the offered and rejected testimony was that:
“two weeks before his murder [Carlos] Sevilla asked her for a weapon, stating that he feared [Carl] Moen would kill him for his drugs, money, and girlfriend.” 308 Or at 15.
The prosecutor’s hearsay objection was sustained and the evidence was excluded. This court, upholding exclusion of the evidence, approved the explanation of ruling offered by the trial judge, as follows:
“But, the fact still remains that even if it had relevancy, the prejudicial effect of such a statement outweighs its probative value, because the prejudicial effect is that the jury could accept that as a statement for the truth of what is being said by the declarant about some future thing that is going to happen, and it is not admissible for that purpose.” 308 Or at 17 n 12.
(The fact that the persons accused by the victims in Mendez and here are named “Moen” is a coincidence. They are two different people.)
In the murder case of People v. Ireland, 75 Cal 188, 450 P2d 580 (1969), the issue was whether a homicide was intentional, as it is one of the issues here. There, the accusatory statement was made on the day of her death by the victim, Ann, to her friend, Mrs. Blount. The trial court permitted Mrs. Blount to testify, over hearsay objection, that the victim told her she feared that the defendant would kill her. The California Supreme Court reversed, stating that:
“In such circumstances it must be concluded that the hearsay statement of Ann offered through the testimony of Mrs. Blount was improperly admitted into evidence.
* * * *
“The error was prejudicial. The statement in question not only reflected Ann’s state of mind at the time of utterance; it *113also constituted an opinion on her part as to conduct which defendant would undertake at a future time. On the basis of this hearsay opinion the jury might reasonably have inferred that Ann several hours before the homicide had concluded that defendant had then formed the intention to kill her. The next logical inference, to wit, that Ann’s assessment of defendant’s then intention was accurate and defendant had in fact formed an intention to kill several horns before the homicide strikes directly at the heart of the defense. The judgment must, therefore, be reversed.” 75 Cal at 193-94, 450 P2d at 585-86 (footnote omitted).
Indeed, as of the time of the annotation “Admissibility as Res Gestae, of Accusatory Utterances Made by Homicide Victim Before the Act,” 74 ALR 3d 963 (1976), the author was able to state categorically:
“Where the interval of time between the utterance and the act of homicide extended over a period of several days the attempt to introduce such statement into evidence has been unsuccessful.” Id. at 981.
The United States Supreme Court has also spoken about accusatory statements made by a homicide victim which point to defendant as the murderer in a case which presents the accusation as a backward-looking one. But that is also the gist of the majority’s description of Mrs. Chatfield’s accusation here, even though that description does not fit the literal words which the doctor relayed to the jury. In Shepard v. United States, 290 US 96, 54 S Ct 22, 78 L Ed 196 (1933), a victim, two weeks before her death, told her nurse, then caring for her as a patient, that “Dr. Shepard has poisoned me.” 290 US at 98. The doctor was husband of the victim and the indicted defendant against whom the nurse was permitted to testify. Speaking through Justice Cardozo, the Supreme Court reversed the conviction because of error in admitting the hearsay statement, either as dying declaration or as proof of state of mind of the victim.
The Supreme Court rejected arguments that the jury would not be misled into treating the accusation as proof of Dr. Shepard’s guilt. The court stated:
“The reverberating clang of those accusatory words would drown all weaker sounds. It is for ordinary minds, and not for *114psychoanalysts, that our rules of evidence are framed.” 290 US at 104.
b. This Accusatory Statement and OEC 803(4); Statements for the Purposes of Medical Diagnosis or Treatment
Two days or more3 before her death by violence in her home, Mrs. Chatfield told her physician of her fear of death at the hands of defendant.
(i.) OEC 803(4) Exception Applies to Past or Present Events, Not to Future Predictions
The text of rule 803(4) clearly shows that the exception relates only to statements of past or present events. It lists as “not excluded” the following:
“Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain or sensations, or the inception or general character of the cause of [sic] external source thereof insofar as reasonably pertinent to diagnosis or treatment.”
The Legislative Commentary likewise supports the exemption only for proof of past or present condition, or causation of the past or present condition, as follows:
“The guaranty of trustworthiness extends to statements of past condition made for the purpose of diagnosis or treatment, i.e., medical history, although until now Oregon courts have not accepted this. The guaranty also extends to statements regarding causation of a condition, if reasonably pertinent, in accord with the current trend.” Kirkpatrick, supra, at 360 (citations omitted).
However, as the majority opinion notes but does not explain, the guarantee of reliability upon which the law permits the doctor’s testimony is the belief in the mind of the patient that the statement is pertinent to the doctor’s treatment and diagnosis. The reliability of hearsay statements depends on the declarant’s understanding that the statement *115is pertinent to diagnosis or treatment so that the declarant will be motivated to tell the truth in the interest of declarant’s own health.
(ii.) OEC 803(4) Exception Requires Declarant to Have a Treatment Motive for the Statement Offered
The main case upon which the majority relies, states this requirement as follows: “[F]irst, the declarant’s motive in making the statement must be consistent with the purposes of promoting treatment.” United States v. Renville, 779 F2d 430, 436 (8th Cir 1985) (emphasis added). The Renville court cited other 8th Circuit cases in support of the rule. Renville and the cases it cites involve a past fact, not a future prediction or opinion, and identify the person who criminally injured the declarant personally. The use of the past-fact statement in Renville is to identify, through the doctor’s testimony, the assailant — to disclose through the doctor who it was that committed past sexual abuse for which treatment is being given.
In the instant case the patient did not make the statement in the form of telling her symptoms to the doctor to obtain his help. Apparently, she held no belief that that subject was necessary to successful diagnosis and treatment, at least there is no evidence that she so understood the situation so that she could form a motive to be truthful in making the accusatory statement.
The doctor-witness described declarant Mrs. Chat-field as “extremely nervous and was not able to cope with” his diagnosis of cancer which was life threatening. She was “agitated and upset” before he told her that and she “wouldn’t discuss” the life threatening problem. The situational depression, which the doctor-witness diagnosed a month earlier, was present and heightened: “It was impossible to conduct an interview with her. * * * She seemed to jump from one subject to the next. She couldn’t concentrate or answer my questions directly.” Declarant had been treated for symptoms of depression even before she became the doctor-witness’ patient eight months earlier and before her daugher and defendant moved to her home.
*116United States v. Narciso, 446 F Supp 252, 289 (ED Mich 1977) (statement of patient he “was shot” admissible but statement “shot by white man” not admissible), interprets the identical provisions of the Federal Rules of Evidence, FRE 803(4), as follows:
“Yet while the doctor’s motive was further diagnosis, the underlying assumption of the rule requires the Court to inquire as to the declarant’s motivation for giving the information. If his motive is to disclose the information to aid in his own diagnosis and treatment, this, it is assumed, guarantees the statement’s trustworthiness. However, if the declarant makes the statement while under the impression that he is being asked to indicate ‘who was responsible’ for what happened, his response may very well be accusatory in nature and any inherent reliability of such a statement is thereby destroyed.”
Indeed, the majority opinion discloses that the declarant had no ability to form or follow a motivation to tell her doctor the truth at the time she made the declaration.
The majority points out that she was, at the time she saw the doctor “laboring under the stress of an event or condition which caused excitement.” 309 Or at 59. The doctor could not even instruct her about the life-threatening cancer in her eye. Id at 19-20.
The doctor’s recounting of this particular statement — “I fear he will kill us both” — should not have been admitted as qualifying under the exception for statements of past events or present condition made to a physician for treatment.
None of the authorities cited by the majority are about a statement used to prove the intent or identity of a future, but predicted, homicide. No authority can be found to support admission under the diagnosis and treatment exception, to prove a future event.4 Rather, the authorities cited, or *117which can be found, require that the declaration of the patient be about past causation of a currently existing condition. At most, the declaration, under those authorities, would be admissible to prove that the mother-in-law’s existing condition of depression was caused by fear of her son-in-law. These cases do not support admission of a prediction of who will commit a future crime as to which there can be no present motive to be truthful to obtain proper treatment. These cases are not at all about an accusation that “He will kill me” in the future. Nor do they involve declarants who told the doctor-witness “No, he has never abused me.” .
Moreover, there are other ways in which the majority’s sustaining of the use of this declaration as evidence are not supported by authorities quoted or cited by the majority.5
(iii.) OEC 803(4) Fault-Attribution Exception Limited to Child Abuse Cases
The Renville court justified a special exception from the restrictions of FRE 803(4) upon which the majority seizes and expands. A treatment statement normally may not be used for attributing past fault. The special exception is for “a statement of a child abuse victim that the abuser is a member of the victim’s immediate household.” 779 F2d at 436. The majority quotes this special exception but, then, without any analysis whatever or citation of any authority, states as a holding that:
“Admissibility of statements of the type challenged here is not limited to cases involving child abuse.” 309 Or at 59.
The cases relied upon by the majority in footnote 4 do not *118support the misapplication of the rule by the majority. Rather, they are about identifying the perpetrator of child sex abuse which has occurred within a family. Moreover, the legislature limited any expansion of admissibility of any such past accusatory statements to those made by a child under 10 years when it added OEC 803(18)(a) in 1989.
c. The Accusatory Statement and OEC 803(2), the Excited Utterance Exception
The majority upholds the accusatory statement about future conduct on the ground that it was spontaneous, made in a state of excitement, and brought on by past events which the majority documents as “threatened with a shotgun” at least three weeks earlier.
In general, this exception requires that the declarant be startled and exclaim spontaneously and thus not be able to deliberate or think about what to say between the event and the excited utterance. See Zeller v. Dahl, 262 Or 515, 518-20, 499 P2d 1316 (1972); Kirkpatrick, Oregon Evidence, 355 (1982) and 135 (Supp 1988-1989).
The excited utterance rule provides that the declaration is “not excluded” although it is made out-of-court, i.e. hearsay. OEC 803(2). The rule does not exclude the following:
“A statement relating to a startling event or condition made while the declarant was under the stress of excitment caused by the event or condition.”
The Legislative Commentary states:
“The key factor in determining whether an utterance is ‘excited’ and therefore qualifies under the exception, is the degree to which it is spontaneous.” Kirkpatrick, supra, at 353.
(i.) Startling Event Required for Exception
The commentary and rule require a “startling event” and that the declaration in evidence be related in time to that startling event. No case or other authority can be cited to support a time-separation of more than three weeks. Yet, that is the time separation between the shotgun incident and the accusatory statement of the victim. Mrs. Chatfield’s adult *119grandson, who was there, testified to establish the shotgun incident date.
The excited statement must relate to an immediately past or present event causing the excitement during which the utterance is made.
(ii.) Utterance Must Be Close In Time to Startling Event
The majority makes use of the elastic word “long,” found in a text on evidence, in an effort to avoid the problem of over three weeks delay between the startling event on which the majority relies to make the utterance an excited one and the date of the utterance offered in evidence. 4 Louisell and Mueller, Federal Evidence, 506, § 439 (1980). The text uses the words “long lapses of time,” but the longest lapse in a cited supporting case is 20 hours, not over three weeks. Id at 506 n 10. In the 20-hour case, the evidence was a statement made to a doctor while declarant was hospitalized for the prior injury to which the statement directly related. Id. It was not an accusation about future conduct.
(iii.) Excitement of Startling Event Must Persist Until Utterance
There is no evidence here that the excitement of the shotgun incident was present in the declarant or that she had performed no reflective reasoning after that event and before her declaration to the doctor. The majority replaces the absent, but needed, evidence by connective conjecture. In so doing, the majority stretches the rule’s requirement for a time connection between the startling event and the utterance many times further than the point at which all other courts have held the connection breaks and the utterance is inadmissible. Even so no continuing excitement from the startling event is shown to be present.
CONCLUSION
I am not convinced beyond a reasonable doubt that the erroneously admitted evidence did not significantly influence the jury’s verdict and its finding of intentional and deliberate murder. The case was circumstantial. The homicides *120were with a .38 caliber pistol, not a shotgun, and there is some evidence they were committed in the course of a marijuana-related burglary. The state offered a plea bargain for life imprisonment which the defendant refused. The judge’s instructions offered no lesser included offenses to the jury. The victim’s accusation of future wrongdoing produces a “reverberating clang,” to borrow Justice Cardoza’s phrase, which unfairly prejudiced the result. I would reverse the conviction as well as the penalty phase verdict in this case. The finding of guilt should be reversed and a new trial granted on that issue as well as on the death penalty issue which the majority’s rewriting of the death penalty law will require.
Linde, J., joins in this dissent.The defendant in Penry was a 22-year-old mentally retarded male with the “mental age” of a child six-and-one-half years old. 109 S Ct at 2941, 106 L Ed 2d At 271. A major reason given by the Supreme Court for refusing to constitutionally exempt substantially retarded adults from the death penalty was that the states have not generally excluded retarded people from death penalty exactions and that “legislation * * * is an objective indicator of contemporary values upon which we can rely.” Id. at 109 S Ct at 2955, 106 L Ed 2d at 289. Under that line of reasoning, the majority, by drastically altering Oregon’s legislation, certainly obscures the usefulness of legislation as an objective indicator of contemporary values.
Spangenberg & Walsh, Capital Punishment or Life Imprisonment? Some cost Considerations, 23 Loy LAL Rev 45, passim (1989) (reporting several death penalty studies and concluding that “capital punishment is simply more expensive than life imprisonment”); see also Gary, The Cost of Taking a Life: Dollars and Sense of the Death Penalty, 18 UC Davis L. Rev 1221, 1269 (1985). Cf. United States General Accounting Office, Criminal Justice: Limited Data Available on Costs of Death Sentences, 4 (Sept. 1989) (noting National Center for State Courts’ study that “concludes that even though many experts believe that it costs more to finance a system in which the death penalty is an option, little empirical data exist that actually compare the cost of a death sentence case with a non-death sentence case” and that offers a research methodology designed to gather that data.)
The state’s pathologist testified that she was unable to fix the time or the day of death.
The majority’s fifth footnote, however, cites to a Wisconsin decision which the majority finds similar to the question here. 309 Or at 61. In the Wisconsin case, a victim told her psychiatrist that she was “living in fear” of her husband and that she felt trapped and resentful in her marriage. No statement that she would be killed was included. No accusatory identification of a future killer was made. The doctor was treating the victim for overweight, smoking, and anxiety neurosis. Admitting the evidence of her declaration, the court simply held that the declaration was within the Wisconsin equivalent of Oregon’s OEC 803(4) exception without analysis or citation to authority about the nature of the statement or its effect. State v. Wyss, 124 Wis 2d 681, 370 NW2d 745, 759 (1985).
The Legislative Commentary on OEC 803(4) warns that “statements as to fault ordinarily would not qualify under the language of this subsection. Thus, a statement that the declarant was struck by an automobile would not be excluded [from admission in evidence], as touching causation; a statement that the car was driven through a red light [later recounted by the treating doctor] would, as touching on fault.” Kirkpatrick, supra, at 360. In this context, Mrs. Chatfield’s statement would be like saying, “I am upset because I fear my son-in-law will strike me with his auto,” offered to prove that her son-in-law drove a hit-and-run auto which killed her two days later. See id at 138 (Supp 1988-1989) (patients’ statements “are admissible under Rule 803(4), only if they were made with an intent to facilitate medical diagnosis or treatment and were in fact reasonably pertinent”); see also Mayor v. Dowsett, 240 Or 196, 225, 400 P2d 234 (1965).