GILLETTE, J.

The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.

Kistler, J., dissented and filed an opinion.

GILLETTE, J.

Defendant was convicted of aggravated murder and other crimes, and was sentenced to life imprisonment without the possibility of parole. On his appeal to the Court of Appeals, he assigned error to the trial court's refusal to give an instruction about the consequences of a verdict of guilty except for insanity and to the trial court's decision to allow the state to present certain "victim impact" evidence at the sentencing proceeding that followed his conviction for aggravated murder. The Court of Appeals rejected both assignments and affirmed. State v. George, 183 Or App 583, 54 P3d 619 (2002). We allowed defendant's petition for review and now conclude that defendant's arguments with respect to the first assignment of error are well taken. Accordingly, we reverse defendant's convictions and remand to the trial court for further proceedings.

Briefly, the facts are as follows. When defendant was 17 years old, he suffered from a mental disorder that manifested itself, in part, in powerful, recurring fantasies about raping, torturing, and killing young children. One day, defendant stabbed and killed a neighbor's child, stole a rifle from the neighbor's home, and proceeded to the home of Baker, his father's former girlfriend, intending to rape and possibly kill Baker's 10-year-old daughter. When defendant reached Baker's house, he entered, but found it empty. He left the Baker home and walked several miles out of town, then called the police and confessed.

Defendant was charged with aggravated murder, attempted aggravated murder, attempted first-degree rape, and other crimes. At trial, defendant advanced an insanity defense.

During the trial, a controversy arose over the requirement of ORS 161.313 that, when a criminal defendant raises an insanity defense in a case being tried to a jury, the trial court "shall instruct the jury in accordance with ORS 161.327." Defendant objected to Uniform Criminal Jury Instruction 1122, the instruction that had been designed to meet the statutory requirement in ORS 161.313, on the ground that the uniform instruction contained some inaccuracies and included material that was not part of ORS 161.327. Defendant submitted a different "means of disposition" instruction that, in his view, was more accurate and more "jury-friendly" (because it excluded extraneous material), and asked the trial court to give his instruction instead.

However, the trial court indicated that it would not give any instruction regarding the consequences of a finding of guilty except for insanity. The trial court believed that giving such an instruction would be unlawful under the Court of Appeals' then-recent decision in State v. Amini, 154 Or App 589, 963 P2d 65 (1998), rev'd, 331 Or 384, 15 P3d 541 (2000).

Thereafter, the jury found defendant guilty of aggravated murder, first-degree burglary, and attempted first-degree rape. The court then held a separate penalty-phase proceeding as ORS 137.707(2) and ORS 163.150 require.

During the sentencing proceeding, the state asked Baker, the mother of defendant's intended rape victim, to testify about how a sentence of life imprisonment with the possibility of parole might affect her and her daughter. Defendant objected, but his objection was overruled. Baker then testified that a sentence of life with the possibility of parole would lower the quality of her daughter's life because her daughter would be fearful about what defendant might do to her when and if he were released. The jury thereafter chose, for defendant's aggravated murder conviction, a sentence of life imprisonment without the possibility of parole.

With respect to the jury instruction issue, the Court of Appeals did not consider whether the trial court had erred by failing to give any instruction pursuant to ORS 161.313. That court concluded that defendant's "sole contention [on appeal was] that the [trial] court [had] erred in failing to deliver the specific instruction that he offered." George, 183 Or App at 589. On that narrow question, the Court of Appeals concluded that there had been no error because defendant's requested instruction was "incomplete and inaccurate." Id. at 590. The Court of Appeals was particularly concerned that the requested instruction failed to describe the authority of the Psychiatric Security Review Board (PSRB) to discharge a person under its jurisdiction without supervision. Id.

Defendant disputes the conclusion that his requested instruction was incomplete and incorrect. He contends that the direction in ORS 161.313 that the trial court instruct the jury " in accordance with ORS 161.327" (emphasis added) does not require that every detail of ORS 161.327 be included in the instruction. He denies, moreover, that a proper instruction must include information about the PSRB's authority to discharge persons without supervision. He notes that the PSRB's authority in that regard is described in statutes other than ORS 161.327 and to which ORS 161.327 refers only obliquely.

We agree with defendant that the "in accordance" wording of ORS 161.313 does not require an instruction that includes every detail, and explains every statutory reference, in ORS 161.327. However, we do not agree that defendant's requested instruction conveys a correct overall impression of ORS 161.327. In particular, we conclude that the requested instruction conveys an erroneous impression of the court's and the PSRB's respective areas of authority over a person found guilty except for insanity.

ORS 161.327(1) provides that, upon entry of a verdict of guilty except for insanity, the court shall order the person placed under the PSRB's jurisdiction for care and treatment if (1) the person would have been guilty of a felony or certain kinds of misdemeanors; (2) the person is affected by a mental disease or defect; and (3) the person presents a substantial danger to others requiring commitment to a state mental hospital or conditional release. ORS 161.327(2) provides that the court will decide whether the person will be hospitalized or conditionally released with supervision, "pending any hearing before [the PSRB]." Under ORS 161.327(6), the court's jurisdiction over the person ends once the PSRB is notified of the person's conditional release. Finally, under ORS 161.327(8), it is incumbent upon a court, when placing a person under the jurisdiction of the PSRB, to notify that person of his or her right to a hearing before the PSRB "in accordance with ORS 161.336(7) and 161.341(4)." Viewed overall, ORS 161.327 contemplates that trial courts will make an initial choice between hospitalizing or conditionally releasing a person who is found guilty of a crime except for insanity. In almost all cases, however, the person ultimately will be under the jurisdiction of the PSRB for a period equal to the maximum sentence for those crimes and the PSRB will have control, through a hearings process, over the long-term disposition of the person.

Defendant's requested instruction does not describe, or even suggest, that general arrangement. Instead, it suggests that the PSRB has a role (the nature of that role is unclear) only if the trial court decides to commit the person to a state hospital. The instruction also suggests that the trial court's decision is somehow final: It does not state that, in all cases, the person's long term fate is in the hands of the PSRB and that the trial court's disposition stands "pending any hearing" before that body. Given the foregoing observations, we assume, without deciding, that the Court of Appeals was correct in concluding that the requested instruction was not "in accordance with ORS 161.327" and did not meet the requirements of ORS 161.313. That does not end our inquiry, however.

Defendant argues that, even if his requested instruction is incorrect, the fact remains that ORS 161.313 required the trial court to instruct the jury in accordance with ORS 161.327 and the trial court failed to do so. Defendant contends that the trial court clearly erred in failing to give some instruction that fulfilled the requirement of ORS 161.313.

We have noted that the Court of Appeals confined its analysis to the requested instruction, concluding that defendant was not raising before that court the related question whether the trial court failed in its obligation to give some instruction that comported with ORS 161.313. If that conclusion is accurate, then prudential rules might prevent us from considering the question in this court.

We agree with the Court of Appeals' assessment that defendant did not raise separately the issue of the trial court's compliance with ORS 161.313. However, we think that the argument that defendant did advance to the Court of Appeals under that assignment of error fairly raised the question. Although defendant's assignment of error in the Court of Appeals was directed at the trial court's refusal to give "defendant's jury instruction number 14," his argument under that assignment was directed primarily at the court's obligation to instruct the jury in accordance with ORS 161.313. He pointed out that

"the trial court failed to give an instruction required by Oregon law. No other instruction even touched upon the consequences of an insanity verdict. Therefore, error should be presumed because the jury instructions were not a complete and accurate statement of Oregon law."

Defendant also quoted trial counsel's exceptions to the jury instructions, including the statement that "defendant excepts to the failure to give a means of disposition instruction like that requested in Defendant's 14 or some other that accurately sets out the provisions of [ORS] 161.327." When viewed as a whole, defendant's assignment of error and argument under the assignment sufficiently raised the issue whether the trial court erred in failing to give some instruction that comported with the requirement of ORS 161.313.

The state contends that, even if defendant argued the foregoing point in the Court of Appeals, he failed to raise it adequately in the trial court. The state's argument in that regard is three-pronged. The state suggests, first, that defendant's exception to the jury instruction, quoted above, was a belated expansion of defendant's initial objection, which addressed only the trial court's refusal to give his requested instruction. Citing State v. Nodine, 198 Or 679, 259 P2d 1056 (1953), the state suggests that objections to an instruction must be raised before the commencement of the jury charge and that a claim of error cannot be based on an after-the-fact exception.

Assuming that the state is correct in principle, our reading of the record does not agree with the state's description of the nature of defendant's initial objection. It is clear to us that the initial discussions about how and whether to instruct the jury under ORS 161.313 occurred in chambers and were not recorded. As such, the specifics of defendant's objections can only be inferred from what defendant said later, when he formally excepted to the court's jury instructions. At that point, defendant focused on the fact that the trial court had not given his instruction "or some other" instruction in accordance with ORS 161.327. He also acknowledged that he had objected to the uniform instruction on technical grounds and stressed that he was not objecting to the general requirement that an instruction on means of disposition be given (and, in fact, had requested such an instruction). The trial court then confirmed, for the record, that "we did talk before instruction" about the "means of disposition instruction" and, particularly, the Court of Appeals' decision in Amini. The fairest reading of the colloquy as a whole is that defendant previously had raised all the points that he raised in his later exception, including the argument that the state now contends was not preserved.

The state also suggests that defendant's objections at trial were insufficient to preserve his present argument that an instruction in accordance with ORS 161.327 was required when, at the time of trial, controlling precedent (the Court of Appeals' decision in Amini) held that giving such an instruction violated a criminal defendant's constitutional rights. The state does not deny that criminal defendants may waive their constitutional rights, including the right that was at issue in Amini. It argues, however, that defendant's objections and arguments at trial in the present case cannot be viewed as waiving that right because they were not sufficiently "express, knowing, and voluntary." In particular, the state contends that it was "not incumbent on the [trial] court to treat [defendant's] proposed instruction, flawed as it was, coupled with objections to the standard instruction, as a waiver of a constitutional right."

We are satisfied, however, that defendant expressed to the trial court his wish to waive the constitutional right that, according to the Court of Appeals' decision in Amini, an instruction under ORS 161.313 would impair. Specifically, defendant informed the court that, although he objected to the uniform instruction under ORS 161.313 on technical grounds, he was not objecting generally to the giving of a consequences instruction and, in fact, was asking the court to give one. In the context of the trial court's subsequent comment, indicating that Amini had been at the center of the discussions, it is difficult to see defendant's request for an instruction as anything other than a waiver of the right at issue in Amini.

The state asserts, finally, that defendant cannot be heard to complain about the trial court's failure to give an instruction "in accordance with ORS 161.327," when he objected to the uniform instruction and failed to offer one that was a correct statement of the law. Although the state's position accurately reflects the approach that we ordinarily take regarding preservation of jury instruction issues, we reject that argument here for two reasons. First, it cannot be squared with the fact that ORS 161.313 unequivocally places the responsibility for giving the required instruction on the trial court, without regard to whether the defendant wants or requests such an instruction, much less offers one that is a correct statement of the law. Second, the state's argument ignores the fact that, at the relevant time, the trial court already had announced that, because of the Court of Appeals' decision in Amini, it would not give the uniform instruction to the jury, "nor would [it] give a variation of it." In view of that announcement, defendant reasonably could assume that attempting to formulate a revised instruction that comported with the requirement of ORS 161.313 would have been an exercise in futility. Our requirements respecting preservation do not demand that parties make what the record demonstrates would be futile gestures.

We conclude, in short, that defendant's objections at trial were sufficient to preserve his present claim that the trial court erred in failing to give an instruction that fulfilled the statutory directive of ORS 161.313. We proceed to the merits of that claim.

The answer, on the merits, is inescapable. ORS 161.313 provides that, when a defendant's sanity is an issue, the trial court " shall instruct the jury in accordance with ORS 161.327." As we already have noted, that statute unequivocally requires the trial court to give an instruction in accordance with ORS 161.327. The trial court failed to so instruct the jury and, in failing to do so, erred.

That leaves only the question whether the error was prejudicial. When a trial court fails to give the instruction that ORS 161.313 requires, it denies the defendant a benefit that the legislature intended that he or she have, viz., a jury that will be informed adequately as to the consequences of a "guilty but insane" verdict and, therefore, will not be influenced by unwarranted concerns that the defendant will be released immediately or prematurely. Defendant did not have the benefit of such a jury. We see no basis, on this record, for suggesting that such an omission could be harmless error. Defendant's convictions, all of which are affected by the error, must be reversed, and the case remanded to the trial court for further proceedings.

Defendant has sought review on two other grounds, each of which raises important questions respecting the evidence that is admissible in a penalty-phase hearing. In one issue, defendant asserts that, because he could not receive a sentence of death in this case (because of his age at the time the crimes were committed), it was error for the trial court to admit "victim-impact" evidence in the penalty-phase proceeding. In the second, defendant argues that, even if "victim-impact" evidence is admissible, the evidence offered by the state in this case did not qualify because it did not relate "to the personal characteristics of the victim or the impact of the crime on the victim's family." ORS 163.150(1)(a). Important as those issues may be, we conclude that it is inappropriate to address them now. Defendant's case is going back for a new trial. Defendant may or may not be convicted at the new trial. And, if he is not, any opinion that we offer now respecting the penalty-phase issues will be irrelevant. We decline to address the additional issues that defendant advances at this time.

The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.