General Provisions

ORS 161.309
Notice of mental defense

  • when report required
  • contents of report
  • plea

(1)

The defendant may not introduce evidence on the issue of insanity under ORS 161.295 (Effect of qualifying mental disorder), unless the defendant:

(a)

Gives notice of intent to do so in the manner provided in subsection (3) of this section; and

(b)

Files with the court a report of a psychiatric or psychological evaluation, conducted by a certified evaluator, in the manner provided in subsection (4) of this section.

(2)

The defendant may not introduce in the case in chief expert testimony regarding partial responsibility or diminished capacity under ORS 161.300 (Evidence of qualifying mental disorder admissible as to intent) unless the defendant gives notice of intent to do so in the manner provided in subsection (3) of this section.

(3)

(a) A defendant who is required under subsection (1) or (2) of this section to give notice shall file a written notice of purpose at least 45 days before trial.

(b)

Notwithstanding paragraph (a) of this subsection, the court may, for good cause, permit the defendant to file the notice within 45 days before trial.

(c)

If the defendant fails to file notice under this subsection, the defendant may not introduce evidence for the establishment of a defense under ORS 161.295 (Effect of qualifying mental disorder) or 161.300 (Evidence of qualifying mental disorder admissible as to intent) unless the court, in its discretion, permits the evidence to be introduced where just cause for failure to file the notice is shown.

(4)

A defendant who is required under subsection (1) of this section to file a report of a psychiatric or psychological evaluation shall file the report before trial. The report must be based on an evaluation conducted after the date of the alleged offense and must address the issue of insanity under ORS 161.295 (Effect of qualifying mental disorder) and the dispositional determination described in ORS 161.325 (Finding of guilty except for insanity). If the defendant fails to file a complete report before trial, the defendant may not introduce evidence for the establishment of a defense under ORS 161.295 (Effect of qualifying mental disorder) unless:

(a)

The court, in its discretion, permits the evidence to be introduced when just cause for failure to file the report is shown; and

(b)

If the defendant is charged with a felony, the defendant is tried by a jury.

(5)

(a) A court may not accept a plea of guilty except for insanity to a felony unless a report described in subsection (4) of this section is filed with the court. If the report has not been filed, the court may order that a psychiatric or psychological evaluation of the defendant be conducted by a certified evaluator and a report of the evaluation be filed with the court.

(b)

When the court orders an evaluation of a financially eligible person under this subsection, the court shall order the public defense services executive director to pay a reasonable fee for the evaluation from funds available for that purpose.

(c)

A certified evaluator performing an evaluation of a defendant on the issue of insanity under this subsection is not obligated to evaluate the defendant for fitness to proceed unless, during the evaluation, the certified evaluator determines that the defendant’s fitness to proceed is drawn in question.

(6)

Prior to accepting a plea of guilty except for insanity to a felony, the court shall inform the defendant of the possibility that the court may order commitment or conditional discharge after entry of judgment, and of the maximum total period of commitment or conditional discharge under ORS 161.327 (Commitment or conditional release of person found guilty except for insanity of felony) (5).

(7)

As used in this section, “certified evaluator” means a psychiatrist or psychologist who holds a valid certification under the provisions of ORS 161.392 (Certification of psychiatrists and licensed psychologists). [1971 c.743 §§39,40,41; 1983 c.800 §3; 2003 c.127 §2; 2011 c.724 §1; 2017 c.48 §1; 2019 c.326 §1; 2019 c.329 §1]

Notes of Decisions

Nothing in this section or any other section authorizes court, over defendant's objection, to impose defense of not responsible due to mental disease or defect, whether or not state requests it. State v. Peterson, 70 Or App 333, 689 P2d 985 (1984)

Criminal defendant who shows just cause for not filing notice of intent to present insanity defense at time of plea may file notice at any time before trial, and need not file notice as soon as possible. State v. Robinson, 288 Or App 194; 406 P3d 200 (2017)

Evidence of mental illness offered by caseworker of defendant to show defendant lacked required mental state not "expert testimony" requiring prior notice. State v. Bales, 289 Or App 470, 410 P3d 1088 (2017)

§§ 161.290 to 161.370

Law Review Citations

51 OLR 428 (1972); 52 OLR 285-295 (1973)

Chapter 161

Notes of Decisions

A juvenile court adjudication of whether or not a child committed acts which would be a criminal violation if committed by an adult must necessarily include an adjudication of all affirmative defenses that would be available to an adult being tried for the same criminal violation. State ex rel Juvenile Dept. v. L.J., 26 Or App 461, 552 P2d 1322 (1976)

Law Review Citations

2 EL 237 (1971); 51 OLR 427-637 (1972)

Chapter 161

Criminal Code

(Generally)

Notes of Decisions

Legislature's adoption of 1971 Criminal Code did not abolish doctrine of transferred intent. State v. Wesley, 254 Or App 697, 295 P3d 1147 (2013), Sup Ct review denied

Source

Last accessed
Jun. 26, 2021

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