Offenses Against Persons

ORS 163.135
Extreme emotional disturbance as affirmative defense to murder in the second degree

  • notice of expert testimony
  • right of state to psychiatric or psychological examination


It is an affirmative defense to murder in the second degree for purposes of ORS 163.115 (Murder in the second degree) (1)(a) that the homicide was committed under the influence of extreme emotional disturbance if the disturbance is not the result of the person’s own intentional, knowing, reckless or criminally negligent act and if there is a reasonable explanation for the disturbance. The reasonableness of the explanation for the disturbance must be determined from the standpoint of an ordinary person in the actor’s situation under the circumstances that the actor reasonably believed them to be. Extreme emotional disturbance does not constitute a defense to a prosecution for, or preclude a conviction of, manslaughter in the first degree or any other crime.
(2)(a) The defendant may not introduce in the defendant’s case in chief expert testimony regarding extreme emotional disturbance under this section unless the defendant gives notice of the defendant’s intent to do so.


The notice required must be in writing and must be filed at the time the defendant pleads not guilty. The defendant may file the notice at any time after the defendant pleads but before trial if the court determines that there was just cause for failure to file the notice at the time of the defendant’s plea.


If the defendant fails to file notice, the defendant may not introduce evidence for the purpose of proving extreme emotional disturbance under ORS 163.115 (Murder in the second degree) unless the court, in its discretion, determines that there was just cause for failure to file notice.


After the defendant files notice as provided in subsection (2) of this section, the state may have at least one psychiatrist or licensed psychologist of its selection examine the defendant in the same manner and subject to the same provisions as provided in ORS 161.315 (Right of state to obtain mental examination of defendant).


The discovery of, knowledge about or potential disclosure of the victim’s actual or perceived gender, gender identity, gender expression or sexual orientation, including but not limited to circumstances in which the victim made a romantic or sexual advance that was unwanted but did not involve force toward the defendant, does not constitute a reasonable explanation for an extreme emotional disturbance under this section.


As used in this section, “gender identity” has the meaning given that term in ORS 166.155 (Bias crime in the second degree). [1971 c.743 §90; 1977 c.235 §1; 1981 c.873 §7; 2003 c.127 §1; 2019 c.635 §19; 2021 c.84 §1]

Notes of Decisions

The state’s right to make a psychiatric examination of the defendant can be exercised during the trial. State v. Akridge, 23 Or App 633, 543 P2d 1073 (1975)

In determining whether defendant has acted under influence of extreme emotional disturbance, personality characteristics or traits are not relevant. State v. Ott, 297 Or 375, 686 P2d 1001 (1984); State v. Wille, 317 Or 487, 858 P2d 128 (1993)

Affirmative defense under this provision and affirmative defense of mental disease or defect under ORS 161.295 are not mutually exclusive. State v. Counts, 311 Or 616, 816 P2d 1157 (1991)

Extreme emotional disturbance is not defense to aggravated felony murder. State v. Wille, 317 Or 487, 858 P2d 128 (1993)

Defense of extreme emotional distress is unavailable for

charge of attempted murder. Kibble v. Baldwin, 135 Or App 540, 899

P2d 731 (1995)

Once notice of intent to rely on defense is given, state has unequivocal right to conduct multiple psychiatric examinations of defendant. State v. Moore, 324 Or 396, 927 P2d 1073 (1996)

Evidence of defendant’s anxiety disorder is relevant to “actor’s situation” portion of affirmative defense of extreme emotional disturbance. State v. Zielinski, 287 Or App 770, 404 P3d 972 (2017)


Last accessed
May 26, 2023