2017 ORS 161.055¹
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 (General definitions).

Notes of Decisions

Where no evidence is given at trial in support of de­fense raised in pretrial notice, de­fense issue need not be submitted to jury. State v. Williams, 12 Or App 21, 503 P2d 1254 (1972), Sup Ct review denied; State v. Davis, 14 Or App 422, 512 P2d 1366 (1973), Sup Ct review denied

Under evidence that victim of assault with which defendant was charged was aggressor in fight, defendant was entitled to instruc­tion to jury that State must prove beyond reasonable doubt that defendant had not acted in self de­fense. State v. McMullen, 34 Or App 749, 579 P2d 879 (1978)

State is not re­quired to disprove af­firm­a­tive de­fense raised at trial. State v. Caswell, 53 Or App 693, 633 P2d 24 (1981), Sup Ct review denied

Nothing in this sec­tion or any other sec­tion authorizes court, over defendant’s objec­tion, to impose de­fense of not responsible due to mental disease or defect, whether or not state requests it. State v. Peterson, 70 Or App 333, 689 P2d 985 (1984)

When “de­fense” other than “af­firm­a­tive de­fense” is raised at trial, state has burden to disprove de­fense beyond reasonable doubt. State v. George, 72 Or App 135, 694 P2d 1011 (1985); State v. Olson, 79 Or App 302, 719 P2d 55 (1986)

Where state for first time in rebuttal introduces new evidence to meet burden of disproving de­fense raised in defendant’s case-in-chief, defendant should be permitted surrebuttal. State v. Wilkins, 175 Or App 569, 29 P3d 1144 (2001), Sup Ct review denied

Law Review Cita­tions

51 OLR 534 (1972); 10 WLJ 156 (1974)

Chapter 161

Notes of Decisions

A juvenile court adjudica­tion of whether or not a child committed acts which would be a crim­i­nal viola­tion if committed by an adult must necessarily include an adjudica­tion of all af­firm­a­tive de­fenses that would be available to an adult being tried for the same crim­i­nal viola­tion. State ex rel Juvenile Dept. v. L.J., 26 Or App 461, 552 P2d 1322 (1976)

Law Review Cita­tions

2 EL 237 (1971); 51 OLR 427-637 (1972)

Chapter 161

Criminal Code


Notes of Decisions

Legislature’s adop­tion of 1971 Criminal Code did not abolish doctrine of transferred intent. State v. Wesley, 254 Or App 697, 295 P3d 1147 (2013), Sup Ct review denied

1 Legislative Counsel Committee, CHAPTER 161—General Provisions, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors161.­html (2017) (last ac­cessed Mar. 30, 2018).
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2017, Chapter 161, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano161.­html (2017) (last ac­cessed Mar. 30, 2018).
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.