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, 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 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 or
161.300 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 and the
dispositional determination described in ORS 161.325. 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 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 executive director of the Oregon Public
Defense Commission 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 (7).
(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. [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; 2021 c.483 §2; 2023 c.281 §40]
161.310 [Repealed by 1971 c.743 §432]
Notes of Decisions
Cited in
33
cases (
5 in the last 5 years), 1974–2025 · leading case:
State v. Olmstead, 800 P.2d 277 (Or. 1990).
State v. Olmstead, 800 P.2d 277 (Or. 1990).
· cites it 17× “[2] Pursuant to ORS 161.309, he gave notice of his intent to raise the affirmative defense of guilty except for insanity under ORS 161.”
State v. Bales, 504 P.3d 10 (Or. Ct. App. 2022).
· cites it 6× “300 (2015), which provided that “[e]vidence that the actor suffered from a mental disease or defect is admissible whenever it is relevant to the issue of whether the actor did or did not have the intent which is an element of the crime.”
State v. Peterson, 689 P.2d 985 (Or. Ct. App. 1984).
· cites it 6× “ORS 161.309 does not give that authority simply because it requires only a defendant to give notice before he can introduce evidence of nonresponsibility.”
State v. Moore, 927 P.2d 1073 (Or. 1996).
· cites it 2× “315, which relates to the affirmative defense of insanity due to mental disease or defect, provides, in part: " Upon filing of notice * * * by the defendant [of intent to introduce evidence of insanity due to mental disease or defect] as provided in ORS 161.309(3), the state…”
State v. Mai, 656 P.2d 315 (Or. 1982).
· cites it 2× “455, the notice of alibi statute, and ORS 161.309, which requires a defendant raising a defense of lack of criminal responsibility to "file a written notice of his purpose at the time he pleads not guilty.”
State v. Mains, 669 P.2d 1112 (Or. 1983).
· cites it 2× “295, pursuant to ORS 161.309(3). The state responded by obtaining an order, ORS 161.”
State v. Bales, 410 P.3d 1088 (Or. Ct. App. 2017).
· cites it 6× “The Criminal Law Revision Commission, in commenting on what is now ORS 161.309, stated in pertinent part: "Under the provisions of this section, the defendant without giving notice can introduce any lay evidence in an effort to show that he suffered from a mental disease or…”
State v. Stevens, 806 P.2d 92 (Or. 1991).
“” 22 ORS 161.309(1) and (3) provide in part: “(1) No evidence may be introduced by the defendant on the issue of insanity under ORS 161.”
State Ex Rel. Johnson v. Woodrich, 566 P.2d 859 (Or. 1977).
· cites it 3× “ORS 161.309, 161.315, 163.135. It was neither our intent nor that of the legislature [3] to attempt to undercut the constitutional privilege against self-incrimination.”
State v. Barmon, 679 P.2d 888 (Or. Ct. App. 1984).
· cites it 2× “295 and ORS 161.309(1), and also diminishing responsibility under ORS 161.”
Docken v. Myrick, 402 P.3d 755 (Or. Ct. App. 2017).
· cites it 3× ““(b) Counsel withdrew an ORS 161.309 notice without following through on the recommendations of the neuro-psychologist Dr.”
State v. Bozman, 929 P.2d 1019 (Or. Ct. App. 1996).
· cites it 7× “Defendant argues that the evidence he offered with regard to his mental condition was in support of a defense of partial responsibility under ORS 161.”
— Or. Rev. Stat. § 161.309(1) — 4 cases
State v. Stevens, 806 P.2d 92 (Or. 1991).
“” 22 ORS 161.309(1) and (3) provide in part: “(1) No evidence may be introduced by the defendant on the issue of insanity under ORS 161.”
State v. Barmon, 679 P.2d 888 (Or. Ct. App. 1984).
“295 and ORS 161.309(1), and also diminishing responsibility under ORS 161.”
State v. Peterson, 689 P.2d 985 (Or. Ct. App. 1984).
“ORS 161.309 does not give that authority simply because it requires only a defendant to give notice before he can introduce evidence of nonresponsibility.”
State v. Bozman, 929 P.2d 1019 (Or. Ct. App. 1996).
“Defendant argues that the evidence he offered with regard to his mental condition was in support of a defense of partial responsibility under ORS 161.”
— Or. Rev. Stat. § 161.309(2) — 7 cases
State v. Bales, 504 P.3d 10 (Or. Ct. App. 2022).
“300 (2015), which provided that “[e]vidence that the actor suffered from a mental disease or defect is admissible whenever it is relevant to the issue of whether the actor did or did not have the intent which is an element of the crime.”
State v. Bales, 410 P.3d 1088 (Or. Ct. App. 2017).
“The Criminal Law Revision Commission, in commenting on what is now ORS 161.309, stated in pertinent part: "Under the provisions of this section, the defendant without giving notice can introduce any lay evidence in an effort to show that he suffered from a mental disease or…”
State v. Bozman, 929 P.2d 1019 (Or. Ct. App. 1996).
“Defendant argues that the evidence he offered with regard to his mental condition was in support of a defense of partial responsibility under ORS 161.”
— Or. Rev. Stat. § 161.309(3) — 10 cases
State v. Moore, 927 P.2d 1073 (Or. 1996).
“315, which relates to the affirmative defense of insanity due to mental disease or defect, provides, in part: " Upon filing of notice * * * by the defendant [of intent to introduce evidence of insanity due to mental disease or defect] as provided in ORS 161.309(3), the state…”
State v. Mains, 669 P.2d 1112 (Or. 1983).
“295, pursuant to ORS 161.309(3). The state responded by obtaining an order, ORS 161.”
Docken v. Myrick, 402 P.3d 755 (Or. Ct. App. 2017).
““(b) Counsel withdrew an ORS 161.309 notice without following through on the recommendations of the neuro-psychologist Dr.”
— Or. Rev. Stat. § 161.309(6) — 2 cases
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