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.
(1) It is an affirmative defense to murder in the second degree for purposes of
ORS 163.115 (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.
(b) 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.
(c) 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 unless
the court, in its discretion, determines that there was just cause for failure
to file notice.
(3) 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.
(4) 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.
(5) As used in
this section, “gender identity” has the meaning given that term in ORS 166.155.
[1971 c.743 §90; 1977 c.235 §1; 1981 c.873 §7; 2003 c.127 §1; 2019 c.635 §19;
2021 c.84 §1]
163.140 [Repealed by 1971 c.743 §432]
Notes of Decisions
Cited in
51
cases (
11 in the last 5 years), 1973–2026 · leading case:
State v. Moore, 927 P.2d 1073 (Or. 1996).
State v. Moore, 927 P.2d 1073 (Or. 1996).
· cites it 14× “[12] He essentially argues that EED, as set forth in ORS 163.135(1), provides an affirmative defense to the crimes of both murder and aggravated murder and that the jury should have been so instructed.”
State v. Counts, 816 P.2d 1157 (Or. 1991).
· cites it 34× “By contrast, ORS 163.135, the EED defense, is applicable to those defendants who do know and understand what they allegedly did, but could not control their conduct, and are offering a reasonable explanation so as to diminish their culpability.”
State v. Zielinski, 404 P.3d 972 (Or. Ct. App. 2017).
· cites it 17× “Defendant filed notice under ORS 163.135 of his intention to raise the affirmative defense of EED and to offer expert testimony in support of the defense.”
State v. Wille, 858 P.2d 128 (Or. 1993).
· cites it 12× “The reasonableness of the explanation for the disturbance shall be determined from the standpoint of an ordinary person in the actor’s situation under the circumstances as the actor reasonably believes them to be.”
State v. Hessel, 844 P.2d 209 (Or. Ct. App. 1992).
· cites it 10× “118, the manslaughter statute, which provides, in part: "(1) Criminal homicide constitutes manslaughter in the first degree when: "* * * * * "(b) It is committed intentionally by a defendant under the influence of extreme emotional disturbance as provided in ORS 163.135. The…”
State v. Mains, 669 P.2d 1112 (Or. 1983).
· cites it 4× “As defendant acknowledges in his brief, `[T]he primary defense in the case was one of extreme emotional disturbance.”
Peters v. Belleque, 250 P.3d 456 (Or. Ct. App. 2011).
· cites it 11× “To give context to the parties’ arguments, we first set out the elements of the extreme emotional disturbance defense, as defined in ORS 163.135 (2001). 1 2 That statute provided, in part: “(1) It is an affirmative defense to murder for purposes of ORS 163.”
State v. Keys, 548 P.2d 205 (Or. Ct. App. 1976).
· cites it 5× “When extreme emotional disturbance was added to the Oregon homicide statutes in 1971, the legislature also enacted ORS 163.135, requiring the defense to give pretrial notice of intent to rely on that issue.”
Nichols v. Persson, 468 P.3d 952 (Or. Ct. App. 2020).
· cites it 5× “Persson disturbance, ORS 163.135,5 or a general defense that her mental conditions or drug dependence prevented her from forming the requisite mental state at the time of the crime, using statutes such as ORS 161.”
State v. Adams, 847 P.2d 397 (Or. 1993).
· cites it 2× “ORS 163.135. Because defendant committed the crime after November 1, 1989, a felony conviction for that crime is subject to the sentencing guidelines.”
State Ex Rel. Johnson v. Woodrich, 566 P.2d 859 (Or. 1977).
· cites it 4× “[5] The administration of this kind of rule in the federal courts has demonstrated that such a format serves to protect the legitimate interests of both the defendant and the prosecution and promotes the maintenance of a fair state/individual balance at trial.”
State v. Smallwood, 561 P.2d 600 (Or. 1977).
· cites it 2× “Evidence was admitted through testimony of the state’s psychiatrist that defendant had asserted his right to have his attorney present during the examination as well as his right not to answer questions posed by the psychiatrist concerning the particular acts with which he was…”
— Or. Rev. Stat. § 163.135(1) — 27 cases
State v. Moore, 927 P.2d 1073 (Or. 1996).
“[12] He essentially argues that EED, as set forth in ORS 163.135(1), provides an affirmative defense to the crimes of both murder and aggravated murder and that the jury should have been so instructed.”
State v. Counts, 816 P.2d 1157 (Or. 1991).
“By contrast, ORS 163.135, the EED defense, is applicable to those defendants who do know and understand what they allegedly did, but could not control their conduct, and are offering a reasonable explanation so as to diminish their culpability.”
State v. Wille, 858 P.2d 128 (Or. 1993).
“The reasonableness of the explanation for the disturbance shall be determined from the standpoint of an ordinary person in the actor’s situation under the circumstances as the actor reasonably believes them to be.”
State v. Mains, 669 P.2d 1112 (Or. 1983).
“As defendant acknowledges in his brief, `[T]he primary defense in the case was one of extreme emotional disturbance.”
Nichols v. Persson, 468 P.3d 952 (Or. Ct. App. 2020).
“Persson disturbance, ORS 163.135,5 or a general defense that her mental conditions or drug dependence prevented her from forming the requisite mental state at the time of the crime, using statutes such as ORS 161.”
— Or. Rev. Stat. § 163.135(1)(a) — 1 case
— Or. Rev. Stat. § 163.135(2) — 2 cases
State v. Mains, 669 P.2d 1112 (Or. 1983).
“As defendant acknowledges in his brief, `[T]he primary defense in the case was one of extreme emotional disturbance.”
State v. Zielinski, 404 P.3d 972 (Or. Ct. App. 2017).
“Defendant filed notice under ORS 163.135 of his intention to raise the affirmative defense of EED and to offer expert testimony in support of the defense.”
— Or. Rev. Stat. § 163.135(3) — 2 cases
State v. Counts, 816 P.2d 1157 (Or. 1991).
“By contrast, ORS 163.135, the EED defense, is applicable to those defendants who do know and understand what they allegedly did, but could not control their conduct, and are offering a reasonable explanation so as to diminish their culpability.”
— Or. Rev. Stat. § 163.135(3)(b) — 2 cases
— Or. Rev. Stat. § 163.135(4) — 1 case
State v. Smallwood, 561 P.2d 600 (Or. 1977).
“Evidence was admitted through testimony of the state’s psychiatrist that defendant had asserted his right to have his attorney present during the examination as well as his right not to answer questions posed by the psychiatrist concerning the particular acts with which he was…”
— Or. Rev. Stat. § 163.135(5) — 4 cases
State v. Moore, 927 P.2d 1073 (Or. 1996).
“[12] He essentially argues that EED, as set forth in ORS 163.135(1), provides an affirmative defense to the crimes of both murder and aggravated murder and that the jury should have been so instructed.”
State v. Zielinski, 404 P.3d 972 (Or. Ct. App. 2017).
“Defendant filed notice under ORS 163.135 of his intention to raise the affirmative defense of EED and to offer expert testimony in support of the defense.”
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