State v. Mills

The law in this area is a mess, a judicially created mess. By a “mess,” I mean that — beginning with Cervantes and then continuing through our decisions in Tirado, Means, Davis, and up to today — it is impossible to identify a coherent principle that reconciles the outcomes of those cases.1 And that has not been for any lack of effort or ingenuity.

Cervantes and our holdings have rested on some permutation or combination of a variety of rationales, explicit or implicit, including:(1) Indirect extrinsic “evidence.” See, e.g., State v. Cervantes, 319 Or 121, 126-27, 873 P2d 316 (1994) (evidence…