State ex rel. Ott v. Cushing

I dissent. The test of a rule of law is how it works. If it works well, that is, if it serves the interests of those affected by its operation, we should not try to fix it. If it works badly, it is probably an erroneous rule and we should unhesitatingly reexamine it. The rule we created in Shepard v. Bowe, 250 Or 288, 442 P2d 238 (1968), has worked badly since its inception. It serves defendant’s interests beyond the needs of the Fifth Amendment and it serves the public’s interest not at all. A bare majority of this court nevertheless reaffirmed it in State ex rel Johnson v. Woodrich, 279 Or…