441 Oregon opinions name it 3 courts 1882–2026 89 in the last five years
The cases below were cited by Oregon courts in a sentence that names this issue. Sides come from how each citing opinion treated the case (Syfertize flag on that citation), so a case can appear on both: that is where the law is contested. A red or yellow chip is the case's own overall treatment.
| Case | Followed | Cited |
|---|---|---|
State v. Perezgreen2 sentences2025However, a prosecutor may not “inappropriately characterize the jury’s fact-finding func- tion in a manner that raises some realistic possibility of confusing the jurors about the ultimate standard of proof.” Id. at 621 ; see State v. Perez, 373 Or 591 , 619, 568 P3d 949 (2025) (Bushong, J., concurring) (observing that “a prosecu- tor should never argue or suggest to the jury that the defen- dant has the burden of proving anything, except when the law places the burden of proving an affirmative defense on the defendant”). 2025However, a prosecutor may not “inappropriately characterize the jury’s fact-finding func- tion in a manner that raises some realistic possibility of confusing the jurors about the ultimate standard of proof.” Id. at 621 ; see State v. Perez, 373 Or 591, 619 , 568 P3d 949 (2025) (Bushong, J., concurring) (observing that “a prosecu- tor should never argue or suggest to the jury that the defen- dant has the burden of proving anything, except when the law places the burden of proving an affirmative defense on the defendant”). | 7 | 7 |
State Ex Rel. Mikkelsen v. Hillgreen2 sentences2025ORS 33.065(7) (“Inability to comply with a court order is an affirmative defense.”); ORS 161.055(2) (burden of proof on affirmative defenses in crim- inal matters is by a preponderance of the evidence.); State ex rel Mikkelsen v. Hill, 315 Or 452, 459 , 847 P2d 402 (1993) (applying the preponderance burden to the defendant on his inability-to-pay defense in a punitive contempt case). 2025ORS 33.055(10) (inability to comply is an affirmative defense in a remedial contempt proceeding); ORS 10.095(5) (“[I]n civil cases the affirmative of the issue shall be proved, and when the evidence is contra- dictory, the finding shall be according to the preponderance of evidence[.]”); see also Mikkelsen, 315 Or at 459 n 6 (stating that the burden for the affirmative defense of inability to comply is by a preponderance of the evidence in a punitive contempt proceeding). 196 Lopez v. Oregon State Hospital 2. | 5 | 10 |
Bank of Oregon v. Independent News, Inc.green2 sentences2024See Gertz v. Robert Welch, Inc., 418 US 323, 351-52 , 94 S Ct 2997 , 41 L Ed 2d 789 (1974) (explain- ing that a private individual who “voluntarily injects himself or is drawn into a particular public controversy” can “thereby become[ ] a public figure for a limited range of issues”); Bank of Oregon, 298 Or at 444-46 (explaining applicable standards governing the assertion of the affirmative defense that a defamation plaintiff is a public figure, whether limited pur- pose or all purpose). 2024See Gertz v. Robert Welch, Inc., 418 US 323, 351-52 , 94 S Ct 2997 , 41 L Ed 2d 789 (1974) (explain- ing that a private individual who “voluntarily injects himself or is drawn into a particular public controversy” can “thereby become[ ] a public figure for a limited range of issues”); Bank of Oregon, 298 Or at 444-46 (explaining applicable standards governing the assertion of the affirmative defense that a defamation plaintiff is a public figure, whether limited pur- pose or all purpose). | 5 | 6 |
Robbins v. City of Medfordgreen2 sentences2025And because discretionary immunity is an affirmative defense on which the city would have the bur- den of proof at trial, summary judgment is “appropriate only if the defendant establishes all of the elements of the defense as a matter of law.” John v. City of Gresham, 214 Or App 305, 311-12 , 165 P3d 1177 (2007), rev dismissed, 344 Or 581 (2008); Robbins, 284 Or App at 596 (“Our task on appeal, as circumscribed by our standard of review, is to determine whether the uncontroverted evidence presented by defendant in support of its motion for summary judgment is such that all reasonable factfind 2025And because discretionary immunity is an affirmative defense on which the city would have the bur- den of proof at trial, summary judgment is “appropriate only if the defendant establishes all of the elements of the defense as a matter of law.” John v. City of Gresham, 214 Or App 305, 311-12 , 165 P3d 1177 (2007), rev dismissed, 344 Or 581 (2008); Robbins, 284 Or App at 596 (“Our task on appeal, as circumscribed by our standard of review, is to determine whether the uncontroverted evidence presented by defendant in support of its motion for summary judgment is such that all reasonable factfind | 4 | 6 |
State v. Phillipsgreen2 sentences2024State v. Moreno, 287 Or App 205, 209 , 402 P3d 767 (2017); see also State v. Phillips, 317 Or App 169 , 174 n 1, 503 P3d 1282 (2022) (explaining that choice of evils is not an affirmative defense and that the state has the burden of disproving the defense beyond a reasonable doubt whenever a defendant raises the defense by either pretrial notice or by presenting evidence in the defendant’s case-in-chief, which is the situa- tion in this case). 2024State v. Moreno, 287 Or App 205, 209 , 402 P3d 767 (2017); see also State v. Phillips, 317 Or App 169 , 174 n 1, 503 P3d 1282 (2022) (explaining that choice of evils is not an affirmative defense and that the state has the burden of disproving the defense beyond a reasonable doubt whenever a defendant raises the defense by either pretrial notice or by presenting evidence in the defendant’s case-in-chief, which is the situa- tion in this case). | 4 | 4 |
Patterson v. New Yorkgreen2 sentences1991Patterson v. New York, 432 U.S. 197 , 97 S.Ct. 2319 , 53 L.Ed.2d 281 (1977). 311 Or. at 630 , 816 P.2d at 1165 . [6] New York Penal Law § 40.15 states: "In any prosecution for an offense, it is an affirmative defense that when the defendant engaged in the proscribed conduct, he lacked criminal responsibility by reason of mental disease or defect. 1991Patterson v. New York, 432 U.S. 197 , 97 S.Ct. 2319 , 53 L.Ed.2d 281 (1977). 311 Or. at 630 , 816 P.2d at 1165 . [6] New York Penal Law § 40.15 states: "In any prosecution for an offense, it is an affirmative defense that when the defendant engaged in the proscribed conduct, he lacked criminal responsibility by reason of mental disease or defect. | 3 | 7 |
Welcker v. United Statesgreen2 sentences2021See Bank of Oregon v. Independent News, 298 Or 434, 437 , 693 P2d 35 , cert den, 474 US 826 (1985) (noting “truth” as an affirmative defense to a defamation claim). 2021See Bank of Oregon v. Independent News, 298 Or 434, 437 , 693 P2d 35 , cert den, 474 US 826 (1985) (noting “truth” as an affirmative defense to a defamation claim). | 3 | 4 |
Nelson v. Hughesgreen2 sentences1999See Nelson v. Hughes, 290 Or 653, 663-66 , 625 P2d 643 (1981) (burden of proof as to subsequent bona fide purchaser status lies with the purchaser and must be pleaded as an affirmative defense). 1999See Nelson v. Hughes, 290 Or 653, 663-66 , 625 P2d 643 (1981) (burden of proof as to subsequent bona fide purchaser status lies with the purchaser and must be pleaded as an affirmative defense). | 3 | 4 |
| State v. Moravekgreen | 3 | 3 |
State v. Bolygreen2 sentences2026See State v. Boly, 210 Or App 132, 135 , 149 P3d 1237 (2006) (explaining the textual analysis “negative exceptions” rule, which provides that “when a statutory pro- vision is plainly set out as an exception that stands apart from the description of the elements of an offense, the state is not required to negate the exception; rather, the excep- tion constitutes an affirmative defense, which the defen- dant must establish to prevail”). 2026See State v. Boly, 210 Or App 132, 135 , 149 P3d 1237 (2006) (explaining the textual analysis “negative exceptions” rule, which provides that “when a statutory pro- vision is plainly set out as an exception that stands apart from the description of the elements of an offense, the state is not required to negate the exception; rather, the excep- tion constitutes an affirmative defense, which the defen- dant must establish to prevail”). | 3 | 3 |
State v. Buttreygreen2 sentences2011The court found especially persuasive a statement from the project director of the interim committee that was responsible for the drafting of the bill that became the Oregon Vehicle Code, that “ ‘[p]roof that [a defendant] knew of his suspension would not be an element of the offense but failure to receive notice would be an affirmative defense which would shift the burden to the defendant.’ ” Id. (quoting Minutes, House Committee on Judiciary, May 5, 1975, at 2 (statement of Donald Paillette)). 1993See also State v. Buttrey, 293 Or 575, 590 , 651 P2d 1075 (1982) (“There is no constitutional bar to the creation of *459 a strict liability offense while at the same time providing for excuse or mitigating factor by way of an affirmative defense.”). | 2 | 8 |
State v. Arenagreen2 sentences2025Relatedly, a prosecutor “may not sug- gest that they are aware of evidence that was not presented to the jury—thereby creating an invitation for the jury to speculate.” Id. at 761-62 ; see Perez, 373 Or at 619 (Bushong, 1 We have recognized that a prosecutor may comment on a defendant’s fail- ure to present evidence to support a claimed affirmative defense or “when the defense has raised an issue on which the defendant bears the initial burden of production but fails to present any evidence.” State v Arena, 336 Or App 291, 294 , 560 P3d 757 (2024); see also Perez, 373 Or at 619 (Bushong, J., c 2025Relatedly, a prosecutor “may not sug- gest that they are aware of evidence that was not presented to the jury—thereby creating an invitation for the jury to speculate.” Id. at 761-62 ; see Perez, 373 Or at 619 (Bushong, 1 We have recognized that a prosecutor may comment on a defendant’s fail- ure to present evidence to support a claimed affirmative defense or “when the defense has raised an issue on which the defendant bears the initial burden of production but fails to present any evidence.” State v Arena, 336 Or App 291, 294 , 560 P3d 757 (2024); see also Perez, 373 Or at 619 (Bushong, J., c | 2 | 5 |
State v. Woodsgreen2 sentences2026However, we none- theless disagreed with the defendant’s argument that Phelps was plainly wrong as to the “knowingly” culpable mental state, given the existence of the affirmative defense: “In sum, nothing in Simonov or Haltom displaces our conclusion in Phelps that requiring proof that a defendant knew of the victim’s incapacity would be inconsistent with the affirmative defense in ORS 163.325(3) and its legisla- tive history; as a consequence, those cases are not a basis for concluding that Phelps is plainly wrong insofar as it rejected knowingly as a mental state, even if they give rise to 2025However, we nonetheless disagreed with the defen- dant’s argument that Phelps was plainly wrong as to the “knowingly” culpable mental state, given the existence of the affirmative defense: “In sum, nothing in Simonov or Haltom displaces our conclusion in Phelps that requiring proof that a defendant knew of the victim’s incapacity would be inconsistent with the affirmative defense in ORS 163.325(3) and its legisla- tive history; as a consequence, those cases are not a basis for concluding that Phelps is plainly wrong insofar as it rejected knowingly as a mental state, even if they give rise to | 2 | 4 |
State v. Zamora-Skaargreen2 sentences2024“Errors that had little likelihood of affecting the verdict are harmless and do not warrant reversal.” State v. Black, 364 Or 579, 595-96 , 437 P3d 1121 (2019) (internal quotation marks omitted); see also State v. Zamora-Skaar, 308 Or App 337, 353 , 480 P3d 1034 (2020) (explaining that where a party asserts that, in a bench trial, the trial court applied an incorrect legal standard in considering whether Cite as 332 Or App 526 (2024) 541 they had established an affirmative defense, “we review both to determine whether the court instructed itself incorrectly regarding the law and whether any er 2024“Errors that had little likelihood of affecting the verdict are harmless and do not warrant reversal.” State v. Black, 364 Or 579, 595-96 , 437 P3d 1121 (2019) (internal quotation marks omitted); see also State v. Zamora-Skaar, 308 Or App 337, 353 , 480 P3d 1034 (2020) (explaining that where a party asserts that, in a bench trial, the trial court applied an incorrect legal standard in considering whether Cite as 332 Or App 526 (2024) 541 they had established an affirmative defense, “we review both to determine whether the court instructed itself incorrectly regarding the law and whether any er | 2 | 4 |
State v. Meisergreen2 sentences2025State v. Meiser, 308 Or App 570, 572 , 481 P3d 375 (2021), rev’d in part on other grounds, 369 Or 347 , 506 P3d 402 (2022) (explaining that motion for judgment of acquittal on an affirmative defense may only be granted when no facts are presented upon which reasonable persons could differ). 2025State v. Meiser, 308 Or App 570, 572 , 481 P3d 375 (2021), rev’d in part on other grounds, 369 Or 347 , 506 P3d 402 (2022) (explaining that motion for judgment of acquittal on an affirmative defense may only be granted when no facts are presented upon which reasonable persons could differ). | 2 | 4 |
| Franson v. Radichgreen | 2 | 3 |
| Leland v. Oregongreen | 2 | 3 |
| Foundation for Preservation of Historic Georgetown v. Arnoldgreen | 2 | 2 |
| Outdoor Media Dimensions, Inc. v. Department of Transportationgreen | 2 | 2 |
| State v. Irishgreen | 2 | 2 |
| State v. Proppgreen | 2 | 2 |
| State v. Phillipsgreen | 2 | 2 |
| Gertz v. Robert Welch, Inc.green | 2 | 2 |
| Sandstrom v. Montanagreen | 2 | 2 |
Hampton Tree Farms, Inc. v. Jewettgreen2 sentences2020See Petock v. Asante, 237 Or App 113, 125 , 240 P3d 56 , adh’d to on recons, 238 Or App 711 , 243 P3d 822 (2010), aff’d on other grounds, 351 Or 408 , 268 P3d 579 (2011) (“Judicial estoppel is an affirmative defense.” (Citing Hampton Tree Farms, Inc. v. Jewett, 320 Or 599, 611 , 892 P2d 683 (1995).)). 2020See Petock v. Asante, 237 Or App 113, 125 , 240 P3d 56 , adh’d to on recons, 238 Or App 711 , 243 P3d 822 (2010), aff’d on other grounds, 351 Or 408 , 268 P3d 579 (2011) (“Judicial estoppel is an affirmative defense.” (Citing Hampton Tree Farms, Inc. v. Jewett, 320 Or 599, 611 , 892 P2d 683 (1995).)). | 1 | 6 |
State v. Browngreen2 sentences2015Although defendant’s view of the law is correct—that is, defendant is correct that he was entitled to pursue the affirmative defense “if there [was] any evidence to support each element of [it], *** no matter whether the judge [was] persuaded,” Brown , 306 Or at 604—his argument fails on the facts. 1994App. at 1135 , 569 P.2d 662 (necessity); State v. Suggs, 13 Or.App. 484, 491 , 511 P.2d 405 (1973) (lesser included offense); see also State v. Brown, 306 Or. 599, 604-05 , 761 P.2d 1300 (1988) (citing "theory of the case" rule and holding that an affirmative defense may be withdrawn from jury's consideration only if there is no evidence to support an element of the defense); State v. Shelley, 110 Or.App. 225, 228 , 821 P.2d 1111 (1991) ("theory of the case" rule relates to requirement that defendant be given the opportunity to present a defense ); State v. Smith, 107 Or.App. 647, 651 , 813 P. | 1 | 6 |
State v. Phelpsgreen2 sentences2026See State v. Phelps, 141 Or App 555, 558 , 920 P2d 1098 , rev den, 324 Or 306 (1996) (rejecting the argument that the state was required to prove knowledge of physical helplessness); 2 ORS 163.325(3) provides that, “[i]n any prosecution under ORS 163.355 to 163.445 in which the victim’s lack of consent is based solely upon the incapacity of the victim to consent because the victim is mentally incapacitated, physically helpless or incapable of appraising the nature of the victim’s conduct, it is an affir- mative defense for the defendant to prove that at the time of the alleged offense the defe 2026See State v. Phelps, 141 Or App 555, 558 , 920 P2d 1098 , rev den, 324 Or 306 (1996) (rejecting the argument that the state was required to prove knowledge of physical helplessness); 2 ORS 163.325(3) provides that, “[i]n any prosecution under ORS 163.355 to 163.445 in which the victim’s lack of consent is based solely upon the incapacity of the victim to consent because the victim is mentally incapacitated, physically helpless or incapable of appraising the nature of the victim’s conduct, it is an affir- mative defense for the defendant to prove that at the time of the alleged offense the defe | 1 | 5 |
State v. Dodsongreen2 sentences1977In determining that ORS 161.305 was not unconstitutional, the Court of Appeals noted that State v. Dodson, 25 Or App 859 , 551 P2d 484 , S Ct rev. denied (1976), had held that the first part of ORS 161.305, which requires the defendant to affirmatively prove a mental disease or defect sufficient to completely exclude responsibility, did not violate defendant’s due process rights. 6 The court then held that the same reasoning should apply to the affirmative defense of partial responsibility set forth in the second part of ORS 161.350. 1977In determining that ORS 161.305 was not unconstitutional, the Court of Appeals noted that State v. Dodson, 25 Or App 859 , 551 P2d 484 , S Ct rev. denied (1976), had held that the first part of ORS 161.305, which requires the defendant to affirmatively prove a mental disease or defect sufficient to completely exclude responsibility, did not violate defendant’s due process rights. 6 The court then held that the same reasoning should apply to the affirmative defense of partial responsibility set forth in the second part of ORS 161.350. | 1 | 4 |
| Deep Photonics Corp. v. LaChapellegreen | 1 | 3 |
| State v. Meisergreen | 1 | 3 |
| Deering v. Alexandergreen | 1 | 3 |
| Troutman v. Erlandsongreen | 1 | 3 |
| Lane County Public Works Ass'n Local 626 v. Lane Countygreen | 1 | 3 |
| Hewitt v. THOMASgreen | 1 | 3 |
| Portland General Electric Co. v. Bureau of Labor & Industriesgreen | 1 | 3 |
| State v. Stockettgreen | 1 | 3 |
| Jennings v. Lentzgreen | 1 | 3 |
| State v. Olmsteadgreen | 1 | 2 |
| Kiryuta v. Country Preferred Insurance Co.green | 1 | 2 |
| Peters v. BELLEQUEgreen | 1 | 2 |
| Case | Negative | Cited |
|---|---|---|
| No negative-treatment citations attached to this issue in Oregon. Read the followed side critically anyway. | ||
| Case | Cited | Years |
|---|---|---|
State v. Burrow
green
2 sentences1996This court summarized the rule of those federal cases several years ago: ‘Unless an affirmative defense has the effect of transferring to the defendant the burden of disproving an element of the prosecution’s case, the affirmative defense will be permitted.’ State v. Burrow, 293 Or 691 , 653 P2d 226 (1982).” (Emphasis supplied.) The court’s citation to Patterson is instructive as to how to identify the elements that are constitutionally necessary for the crime of rape of an incapacitated person. 1996This court summarized the rule of those federal cases several years ago: ‘Unless an affirmative defense has the effect of transferring to the defendant the burden of disproving an element of the prosecution’s case, the affirmative defense will be permitted.’ State v. Burrow, 293 Or 691 , 653 P2d 226 (1982).” (Emphasis supplied.) The court’s citation to Patterson is instructive as to how to identify the elements that are constitutionally necessary for the crime of rape of an incapacitated person. | 6 | 1983–1996 |
State v. Haley
green
2 sentences2023State v. Haley, 64 Or App 209, 212-13 , 667 P2d 560 (1983). 2014Former ORS 487.560(2)(a) (1981) repealed by Or Laws 1983, ch 338, § 978 provided, in pertinent part: “(2) In a prosecution [for the crime of ‘driving while suspended’] * * * it is an affirmative defense that: “(a) An injury or immediate threat of injury to human or animal life and the urgency of the circumstances made it necessary for the defendant to drive a motor vehicle at the time and place in question [.]” Haley, 64 Or App at 211 . | 5 | 1988–2023 |
State v. Mayo
green
2 sentences2026State v. Strain, 332 Or App 79 , 548 P3d 169 (2024).4 The court first explained that the state’s comments did not fall within the holding of State v. Mayo, 303 Or App 525, 531-32 , 465 P3d 267 (2020), in which the Court of Appeals held that the state may comment on a defendant’s failure to present or contradict evidence when the defendant is assert- ing an affirmative defense or the defense raises an issue on which the defendant bears the initial burden of produc- tion but fails to present any evidence. 2026State v. Strain, 332 Or App 79 , 548 P3d 169 (2024).4 The court first explained that the state’s comments did not fall within the holding of State v. Mayo, 303 Or App 525, 531-32 , 465 P3d 267 (2020), in which the Court of Appeals held that the state may comment on a defendant’s failure to present or contradict evidence when the defendant is assert- ing an affirmative defense or the defense raises an issue on which the defendant bears the initial burden of produc- tion but fails to present any evidence. | 4 | 2020–2026 |
State v. Lyon
green
2 sentences2025As we held in Lyon, the affirmative defense of EED “is separate and independent from the elements the state must prove to obtain a murder conviction[.]” Id. at 798 . 2015See id. at 41 (noting no “affirmative defense” language in the text or context of the statute at issue); cf. State v. Velykoretskykh, 268 Or App 706, 707-08 , 343 P3d 272 (2015) (under ORS 811.180(1), it is an affirmative defense to driving with a suspended license that the defendant has not received notice of the suspension); State v. Lyon, 65 Or App 790, 792-93 , 672 P2d 1358 (1983) (by statute, it is an affirmative defense to a charge of murder that, at the time of the homicide, the defendant was under the influence of an extreme emotional disturbance). | 4 | 1984–2025 |
State v. Ott
green
2 sentences2011We thus refer to the 2001 version of the statute throughout this opinion. 2 ORS 163.115(l)(a), in turn, provides: “Except as provided in ORS 163.118 * * *, criminal homicide constitutes murder: “(a) When it is committed intentionally, except that it is an affirmative defense that, at the time of the homicide, the defendant was under the influence of an extreme emotional disturbance!.]” ORS 163.118(l)(b) provides: “Criminal homicide constitutes manslaughter in the first degree when: *704 “* * * * :¡: “(b) It is committed intentionally by a defendant under the influence of extreme emotional dist 2011We thus refer to the 2001 version of the statute throughout this opinion. 2 ORS 163.115(l)(a), in turn, provides: “Except as provided in ORS 163.118 * * *, criminal homicide constitutes murder: “(a) When it is committed intentionally, except that it is an affirmative defense that, at the time of the homicide, the defendant was under the influence of an extreme emotional disturbance!.]” ORS 163.118(l)(b) provides: “Criminal homicide constitutes manslaughter in the first degree when: *704 “* * * * :¡: “(b) It is committed intentionally by a defendant under the influence of extreme emotional dist | 4 | 1986–2025 |
Hubbard v. Olsen-Roe Transfer Co.
green
2 sentences2025In 1924, the court summarily stated in Hubbard, 110 Or at 626—a neg- ligence action relating to a storage warehouse—that “the freezing of the pipes as an ‘act of God’ was new matter” that had to be pleaded as an affirmative defense. 2011However, where the defendant desires to present evidence which does not directly controvert a fact necessary to be established by plaintiff, it is a new matter which must be pleaded as an affirmative defense.” (Internal citations omitted.) This court has defined “new matter” as consisting of “a statement of facts different from those averred by the plaintiff and not embraced within the judicial inquiry into their truth" Hubbard v. Olsen-Roe Transfer Co., 110 Or 618, 627 , 224 P 636 (1924). | 4 | 1978–2025 |
John v. City of Gresham
green
2 sentences2025And because discretionary immunity is an affirmative defense on which the city would have the bur- den of proof at trial, summary judgment is “appropriate only if the defendant establishes all of the elements of the defense as a matter of law.” John v. City of Gresham, 214 Or App 305, 311-12 , 165 P3d 1177 (2007), rev dismissed, 344 Or 581 (2008); Robbins, 284 Or App at 596 (“Our task on appeal, as circumscribed by our standard of review, is to determine whether the uncontroverted evidence presented by defendant in support of its motion for summary judgment is such that all reasonable factfind 2025And because discretionary immunity is an affirmative defense on which the city would have the bur- den of proof at trial, summary judgment is “appropriate only if the defendant establishes all of the elements of the defense as a matter of law.” John v. City of Gresham, 214 Or App 305, 311-12 , 165 P3d 1177 (2007), rev dismissed, 344 Or 581 (2008); Robbins, 284 Or App at 596 (“Our task on appeal, as circumscribed by our standard of review, is to determine whether the uncontroverted evidence presented by defendant in support of its motion for summary judgment is such that all reasonable factfind | 4 | 2017–2025 |
State v. Spieler
green
2 sentences2019Nor may a prosecutor, except in rare circumstances, refer to "the defendant's silence or failure to testify[.]" Id. at 641-42 , 346 P.3d 549 (noting that only in some trial settings, such as after a defendant's assertion of an affirmative defense, may a prosecutor comment on the defendant's failure to meet a burden of production or persuasion). 2019Nor may a prosecutor, except in rare circumstances, refer to "the defendant's silence or failure to testify[.]" Id. at 641-42 , 346 P.3d 549 (noting that only in some trial settings, such as after a defendant's assertion of an affirmative defense, may a prosecutor comment on the defendant's failure to meet a burden of production or persuasion). | 4 | 2015–2024 |
Lasley v. Combined Transport, Inc.
green
2 sentences2021ORCP 19 B requires that a party “set forth affirmatively * * * any * * * matter constituting an avoidance or affirma- tive defense.” This court considers “evidence which does not directly controvert a fact necessary to be established by plaintiff” as a “new matter which must be pleaded as an affirmative defense.” Lasley v. Combined Transport, Inc., 351 Or 1, 17 , 261 P3d 1215 (2011). 2021ORCP 19 B requires that a party “set forth affirmatively * * * any * * * matter constituting an avoidance or affirma- tive defense.” This court considers “evidence which does not directly controvert a fact necessary to be established by plaintiff” as a “new matter which must be pleaded as an affirmative defense.” Lasley v. Combined Transport, Inc., 351 Or 1, 17 , 261 P3d 1215 (2011). | 4 | 2011–2021 |
State v. DeMello
neutral
2 sentences1988In State v. DeMello, 300 Or 590 , 716 P2d 732 (1986), this court held that a defendant charged with driving while suspended may not prevail on an affirmative defense based on his lack of notice of the suspension when the evidence revealed that the defendant received a pink slip informing him that the post office was holding a certified letter for him. 1988In State v. DeMello, 300 Or 590 , 716 P2d 732 (1986), this court held that a defendant charged with driving while suspended may not prevail on an affirmative defense based on his lack of notice of the suspension when the evidence revealed that the defendant received a pink slip informing him that the post office was holding a certified letter for him. | 4 | 1987–2002 |
Frangos v. Edmunds
green
2 sentences1964It is not an affirmative defense and need not be pleaded, Slotte v. Gustin, 224 Or 426, 429 , 356 P2d 435 ; Baty et al v. Macken et ux, 206 Or 285, 291 , 292 P2d 489 ; Valdin v. Holteen and Nordstrom, 199 Or 134, 159 , 260 P2d 504 ; Igo et al v. Butler et al, 199 Or 423, 429 , 262 P2d 675 ; Denton v. Arnstein, 197 Or 28, 48 , 250 P2d 407 ; Frangos v. Edmunds, supra, 179 Or at 611 ; DeWitt v. Sandy Market, Inc., 167 Or 226, 240 , 115 P2d 184 (a plea that the accident was “unavoidable in as far as dfendant was concerned” is “merely an argumentative denial of the charge that the defendant was neg 1964It is not an affirmative defense and need not be pleaded, Slotte v. Gustin, 224 Or 426, 429 , 356 P2d 435 ; Baty et al v. Macken et ux, 206 Or 285, 291 , 292 P2d 489 ; Valdin v. Holteen and Nordstrom, 199 Or 134, 159 , 260 P2d 504 ; Igo et al v. Butler et al, 199 Or 423, 429 , 262 P2d 675 ; Denton v. Arnstein, 197 Or 28, 48 , 250 P2d 407 ; Frangos v. Edmunds, supra, 179 Or at 611 ; DeWitt v. Sandy Market, Inc., 167 Or 226, 240 , 115 P2d 184 (a plea that the accident was "unavoidable in as far as defendant was concerned" is "merely an argumentative denial of the charge that the defendant was ne | 4 | 1952–1964 |
State v. Owen
green
2 sentences2025The trial court relied on our decision in Woods, and defendant now asks us to revisit it, arguing that the defen- dant in that case had not presented a developed argument about Phelps and that Supreme Court cases decided since then, like State v. Owen, 369 Or 288 , 505 P3d 953 (2022), have only cast further doubt on Phelps’s conclusion that “knowledge of the incapacity to consent of a person within the definition of ORS 163.375(1)(d) is not a material element of the offense.” Phelps, 141 Or App at 559 . 200 State v. Snider However, neither of those points addresses the fun- damental reason tha 2025The trial court relied on our decision in Woods, and defendant now asks us to revisit it, arguing that the defen- dant in that case had not presented a developed argument about Phelps and that Supreme Court cases decided since then, like State v. Owen, 369 Or 288 , 505 P3d 953 (2022), have only cast further doubt on Phelps’s conclusion that “knowledge of the incapacity to consent of a person within the definition of ORS 163.375(1)(d) is not a material element of the offense.” Phelps, 141 Or App at 559 . 200 State v. Snider However, neither of those points addresses the fun- damental reason tha | 3 | 2025–2026 |
| State v. Haltom green | 3 | 2020–2025 |
| Dewitt v. Sandy Market, Inc. neutral | 3 | 1952–2025 |
| State Ex Rel. Fry v. Fry green | 3 | 1991–2023 |
| Keller v. Armstrong World Industries, Inc. green | 3 | 2008–2021 |
| Doyle v. City of Medford green | 3 | 2014–2014 |
| State v. Peterson green | 3 | 1994–2010 |
| Moody v. Lane County, Or. neutral | 3 | 1981–2008 |
| In Re WINSHIP green | 3 | 1979–1996 |
| Mullaney v. Wilbur green | 3 | 1979–1993 |
| People v. Hobson green | 3 | 1979–1982 |
| Murray v. Wiley green | 3 | 1979–1981 |
| Horn v. Davis green | 3 | 1969–1976 |
| Denton v. Arnstein green | 3 | 1953–1964 |
| Weber v. Rothchild green | 3 | 1908–1929 |
| Lopez v. Oregon State Hospital green | 2 | 2025–2026 |
| McDowell Welding & Pipefitting, Inc. v. United States Gypsum Co. green | 2 | 2012–2026 |
| John v. City of Gresham green | 2 | 2025–2025 |
| State v. Jefferson neutral | 2 | 2025–2025 |
| State v. Kyei green | 2 | 2025–2025 |
| Richards v. Brown neutral | 2 | 2025–2025 |
| State v. Worsham green | 2 | 2025–2025 |
| State v. Purrier green | 2 | 2025–2025 |
| Stevens v. Bispham green | 2 | 2025–2025 |
| McVay v. Byars green | 2 | 1964–2025 |
| Borough v. Caldwell (A172579) green | 2 | 2024–2024 |
| Frost v. Jacobs green | 2 | 2024–2024 |
| State v. Monaco green | 2 | 2024–2024 |
| State v. Moreno green | 2 | 2024–2024 |
Counted by distinct opinions that both name this issue and are annotated to the section; sections every opinion cites regardless of issue are not filtered here, so read the counts against the total above.
Opinions by the citing court's state. A doctrine retained in one state and abandoned in another shows up here as a year span that stalls.