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Oregon Revised Statutes

Or. Rev. Stat. § 161.055 (2026)

Burden of proof as to defenses

✓ current as of May 2026
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      161.055 Burden of proof as to defenses. (1) When a “defense,” other than an “affirmative defense” as defined in subsection (2) of this section, is raised at a trial, the state has the burden of disproving the defense beyond a reasonable doubt.

      (2) When a defense, declared to be an “affirmative defense” by chapter 743, Oregon Laws 1971, is raised at a trial, the defendant has the burden of proving the defense by a preponderance of the evidence.

      (3) The state is not required to negate a defense as defined in subsection (1) of this section unless it is raised by the defendant. “Raised by the defendant” means either notice in writing to the state before commencement of trial or affirmative evidence by a defense witness in the defendant’s case in chief. [1971 c.743 §4]

 

      Note: See note under 161.015.

 

      161.060 [Repealed by 1971 c.743 §432]

 

      161.062 [1985 c.722 §4; 1991 c.386 §8; repealed by 1999 c.136 §1]

Notes of Decisions
Cited in 122 cases (40 in the last 5 years), 1972–2026 · leading case: State v. Mayo, 465 P.3d 267 (Or. Ct. App. 2020).
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State v. Mayo, 465 P.3d 267 (Or. Ct. App. 2020). · cites it 9× “055 provides: “(1) When a ‘defense,’ other than an ‘affirmative defense,’ * * * is raised at trial, the state has the burden of disproving the defense beyond a reasonable doubt. “(2) When a defense, declared to be an affirmative defense by chapter 743, Oregon Laws 1971, is…”
State v. Buttrey, 651 P.2d 1075 (Or. 1982). · cites it 10× “" ORS 161.055(2). The legislative intent is clear: The state makes a prima facie case upon proof of the two elements in ORS 487.”
State v. Phillips, 503 P.3d 1282 (Or. Ct. App. 2022). · cites it 6× “Although a defense such as the choice-of-evils defense is one that, when properly raised, the state must negate beyond a reasonable doubt, ORS 161.055(1), “[a] choice of evils defense 172 State v.”
State v. Dameron, 853 P.2d 1285 (Or. 1993). · cites it 8× “ORS 161.055. [9] The state must prove every material element of the crime charged beyond a reasonable doubt.”
State v. Burrow, 653 P.2d 226 (Or. 1982). · cites it 6× “" The drafters of the criminal code allocated the burden of proof in this way before recent judicial decisions that limited the extent to which due process allows lawmakers to shift the burden of proof to defendants in criminal cases.”
State v. Moravek, 444 P.3d 521 (Or. Ct. App. 2019). · cites it 5× “055(1) ("When a 'defense,' other than an 'affirmative defense' as defined in subsection (2) of this section, is raised at trial, the state has the burden of disproving the defense beyond a reasonable doubt."). Thus, at most the trial court here had an obligation to instruct the…”
State v. McCoy, 521 P.2d 1074 (Or. Ct. App. 1974). · cites it 14× “Therefore, under * * * ORS 161.055, it is a `defense' and the state has the burden of disproving it beyond a reasonable doubt * * *.”
State v. Peterson, 689 P.2d 985 (Or. Ct. App. 1984). · cites it 6× “" The state does not argue for this position.”
State v. Brown, 761 P.2d 1300 (Or. 1988). · cites it 3× “) Because ORS 161.055 is itself a “provision^ of Chapter 743, Oregon Laws 1971,” it appears that it governs the construction of the later statute, and defendant does not challenge the validity of ORS 161.”
State v. Cargill, 786 P.2d 208 (Or. Ct. App. 1990). · cites it 3× “Even assuming that defendants could relinquish their right under ORS 161.055 to have the state prove that the order to leave was lawful, 5 the stipulation does not express a clear intention by defendants to do so.”
State v. Spieler, 346 P.3d 549 (Or. Ct. App. 2015). · cites it 3× “ORS 161.055(1). However, even if the state bears the burden of proof to disprove a defense, it nonetheless must be raised by the defendant, either by notice in writing by the defendant before trial, or by way of evidence presented at trial.”
State v. Counts, 816 P.2d 1157 (Or. 1991). · cites it 6× “ORS 161.055; ORS 136.415. In other words, the requisite proof of "criminal conduct" is requisite proof of "guilt.”
Show all 122 citing cases →
— Or. Rev. Stat. § 161.055(1) — 44 cases
State v. Moravek, 444 P.3d 521 (Or. Ct. App. 2019). “055(1) ("When a 'defense,' other than an 'affirmative defense' as defined in subsection (2) of this section, is raised at trial, the state has the burden of disproving the defense beyond a reasonable doubt."). Thus, at most the trial court here had an obligation to instruct the…”
State v. Mayo, 465 P.3d 267 (Or. Ct. App. 2020). “055 provides: “(1) When a ‘defense,’ other than an ‘affirmative defense,’ * * * is raised at trial, the state has the burden of disproving the defense beyond a reasonable doubt. “(2) When a defense, declared to be an affirmative defense by chapter 743, Oregon Laws 1971, is…”
State v. Phillips, 503 P.3d 1282 (Or. Ct. App. 2022). “Although a defense such as the choice-of-evils defense is one that, when properly raised, the state must negate beyond a reasonable doubt, ORS 161.055(1), “[a] choice of evils defense 172 State v.”
State v. Wilkins, 29 P.3d 1144 (Or. Ct. App. 2001).
State v. Dameron, 853 P.2d 1285 (Or. 1993). “ORS 161.055. [9] The state must prove every material element of the crime charged beyond a reasonable doubt.”
— Or. Rev. Stat. § 161.055(2) — 37 cases
State v. Buttrey, 651 P.2d 1075 (Or. 1982). “" ORS 161.055(2). The legislative intent is clear: The state makes a prima facie case upon proof of the two elements in ORS 487.”
State v. Mayo, 465 P.3d 267 (Or. Ct. App. 2020). “055 provides: “(1) When a ‘defense,’ other than an ‘affirmative defense,’ * * * is raised at trial, the state has the burden of disproving the defense beyond a reasonable doubt. “(2) When a defense, declared to be an affirmative defense by chapter 743, Oregon Laws 1971, is…”
State v. Mains, 669 P.2d 1112 (Or. 1983).
State v. Peterson, 689 P.2d 985 (Or. Ct. App. 1984). “" The state does not argue for this position.”
State v. Douglas, 641 P.2d 561 (Or. 1982).
— Or. Rev. Stat. § 161.055(3) — 23 cases
State v. Mayo, 465 P.3d 267 (Or. Ct. App. 2020). “055 provides: “(1) When a ‘defense,’ other than an ‘affirmative defense,’ * * * is raised at trial, the state has the burden of disproving the defense beyond a reasonable doubt. “(2) When a defense, declared to be an affirmative defense by chapter 743, Oregon Laws 1971, is…”
State v. Phillips, 503 P.3d 1282 (Or. Ct. App. 2022). “Although a defense such as the choice-of-evils defense is one that, when properly raised, the state must negate beyond a reasonable doubt, ORS 161.055(1), “[a] choice of evils defense 172 State v.”
State v. Keys, 548 P.2d 205 (Or. Ct. App. 1976).
State v. Moravek, 444 P.3d 521 (Or. Ct. App. 2019). “055(1) ("When a 'defense,' other than an 'affirmative defense' as defined in subsection (2) of this section, is raised at trial, the state has the burden of disproving the defense beyond a reasonable doubt."). Thus, at most the trial court here had an obligation to instruct the…”
State v. Burrow, 653 P.2d 226 (Or. 1982). “" The drafters of the criminal code allocated the burden of proof in this way before recent judicial decisions that limited the extent to which due process allows lawmakers to shift the burden of proof to defendants in criminal cases.”
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