ORS 161.315¹
Right of state to obtain mental examination of defendant
  • limitations
  • report

(1) Upon filing of notice or the introduction of evidence by the defendant as provided in ORS 161.309 (Notice of mental defense), the state shall have the right to have at least one psychiatrist or licensed psychologist of its selection examine the defendant. The state shall file notice with the court of its intention to have the defendant examined.

(2)(a) Upon filing of the notice, the court, in its discretion, may order the defendant committed to a state mental hospital or any other suitable facility, if the defendant is 18 years of age or older, for observation and examination, which may include treatment as permitted by law.

(b) If the defendant is under 18 years of age, upon filing of the notice, the court, in its discretion, may order the defendant committed to a secure intensive community inpatient facility designated by the Oregon Health Authority for examination.

(c) The state mental hospital or other facility may retain custody of a defendant committed under this subsection only for the duration necessary to complete the observation and examination of the defendant, not to exceed 30 days.

(3) If the defendant objects to the examiner chosen by the state, the court for good cause shown may direct the state to select a different examiner.

(4) An examiner performing an examination on the issue of insanity of a defendant under this section is not obligated to examine the defendant for fitness to proceed unless, during the examination, the examiner determines that the defendant’s fitness to proceed is drawn in question. If, during the examination, the examiner determines that the defendant’s fitness to proceed is in doubt, the examiner shall report the issue to the court and to the superintendent of the state mental hospital or the superintendent’s designee, or to the director of the facility to which the defendant is committed. The superintendent or director may:

(a) Return the defendant to the facility from which the defendant was transported; or

(b) Inform the court and the parties that the defendant should remain at the state mental hospital or other facility for the purpose of an examination under ORS 161.365 (Procedure for determining issue of fitness to proceed). If neither party objects, the court may order an examination under ORS 161.365 (Procedure for determining issue of fitness to proceed) without holding a hearing.

(5) A report resulting from an examination under this section may be filed with the court electronically.

(6)(a) Reports resulting from examinations conducted under this section are confidential and may be made available only:

(A) To the court, prosecuting attorney, defense attorney, agent of the prosecuting or defense attorney, defendant, community mental health program director or designee and any facility in which the defendant is housed; or

(B) As ordered by a court.

(b) Any facility in which a defendant is housed may not use a report prepared under this section to support a disciplinary action against the defendant.

(c) Nothing in this subsection prohibits the prosecuting attorney, defense attorney or agent of the prosecuting or defense attorney from discussing the contents of a report prepared under this section with witnesses or victims as otherwise permitted by law. [1971 c.743 §42; 1977 c.380 §3; 2007 c.14 §5; 2009 c.595 §101; 2011 c.724 §10; 2017 c.48 §2; 2019 c.311 §3; 2019 c.538 §3a]

Notes of Decisions

This sec­tion is basically a codifica­tion of the holding in State v. Phillips, 245 Or 466, 422 P2d 670 (1967), and it gives the defendant the right to object to the psychiatrist chosen by the state. State v. Corbin, 15 Or App 536, 516 P2d 1314 (1973), Sup Ct review denied

A psychiatrist examining the defendant for the state is an of­fi­cer of the state when ques­tioning defendant. State v. Corbin, 15 Or App 536, 516 P2d 1314 (1973), Sup Ct review denied

A defendant may waive his Fifth Amend­ment privilege against self-incrimina­tion and con­sent to a psychiatric examina­tion. State v. Corbin, 15 Or App 536, 516 P2d 1314 (1973), Sup Ct review denied

A valid con­sent to a psychiatric examina­tion may not be obtained unless the defendant has been given a Miranda warning to the effect that his rights apply to the psychiatric examina­tion and unless the defendant has knowingly and voluntarily waived those rights enumerated in Miranda. State v. Corbin, 15 Or App 536, 516 P2d 1314 (1973), Sup Ct review denied

The defendant should be re­quired to answer ques­tions not pertaining to the com­mis­sion of the crime and if the defendant continues to refuse, the af­firm­a­tive de­fense of mental defect will be stricken. State ex rel Johnson v. Richardson, 276 Or 325, 555 P2d 202 (1976)

Order issued pursuant to this sec­tion, requiring defendant to submit to psychiatric examina­tion, was modified to strike pro­vi­sion which di­rected defendant’s counsel not to advise defendant to not answer any ques­tion which did not come within specific limita­tions, but order was not re­quired to provide pro­ce­dures for immediate rulings on objec­tions to ques­tions asked during examina­tion. State ex rel Ott v. Cushing, 289 Or 705, 617 P2d 610 (1980)

Once notice of intent to rely on de­fense is given, state has unequivocal right to con­duct multiple psychiatric examina­tions of defendant. State v. Moore, 324 Or 396, 927 P2d 1073 (1996); State v. Fulmer, 229 Or App 386, 211 P3d 942 (2009), Sup Ct review denied

Law Review Cita­tions

51 OLR 428 (1972); 52 OLR 285-295 (1973)

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

(Generally)

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 (2019) (last ac­cessed May 16, 2020).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2019, Chapter 161, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano161.­html (2019) (last ac­cessed May 16, 2020).
 
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. Currency Information