ORS 161.315
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)

Intentionally left blank —Ed.

(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)

Intentionally left blank —Ed.

(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]

Source: Section 161.315 — Right of state to obtain mental examination of defendant; limitations; report, https://www.­oregonlegislature.­gov/bills_laws/ors/ors161.­html.

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

161.005
Short title
161.015
General definitions
161.025
Purposes
161.035
Application of Criminal Code
161.045
Limits on application
161.055
Burden of proof as to defenses
161.067
Determining punishable offenses for violation of multiple statutory provisions, multiple victims or repeated violations
161.085
Definitions with respect to culpability
161.095
Requirements for criminal liability
161.105
Culpability requirement inapplicable to certain violations and offenses
161.115
Construction of statutes with respect to culpability
161.125
Drug or controlled substance use or dependence or intoxication as defense
161.150
Criminal liability described
161.155
Criminal liability for conduct of another
161.160
Exclusion of defenses to criminal liability for conduct of another
161.165
Exemptions to criminal liability for conduct of another
161.170
Criminal liability of corporations
161.175
Criminal liability of an individual for corporate conduct
161.190
Justification as a defense
161.195
“Justification” described
161.200
Choice of evils
161.205
Use of physical force generally
161.209
Use of physical force in defense of a person
161.215
Limitations on use of physical force in defense of a person
161.219
Limitations on use of deadly physical force in defense of a person
161.225
Use of physical force in defense of premises
161.229
Use of physical force in defense of property
161.233
Use of physical force by peace officer
161.237
Use of physical force involving pressure on throat or neck by peace officer or corrections officer
161.242
Use of deadly physical force by peace officer
161.245
“Reasonable belief” described
161.249
Use of physical force by private person assisting an arrest
161.255
Use of physical force by private person making citizen’s arrest
161.260
Use of physical force in resisting arrest prohibited
161.265
Use of physical force by guard or peace officer employed in correctional facility
161.267
Use of physical force by corrections officer or official employed by Department of Corrections
161.270
Duress
161.275
Entrapment
161.290
Incapacity due to immaturity
161.295
Effect of qualifying mental disorder
161.300
Evidence of qualifying mental disorder admissible as to intent
161.305
Qualifying mental disorder as affirmative defense
161.309
Notice of mental defense
161.313
Jury instructions
161.315
Right of state to obtain mental examination of defendant
161.319
Form of verdict on guilty except for insanity
161.325
Finding of guilty except for insanity
161.326
Notice to victim
161.327
Commitment or conditional release of person found guilty except for insanity of felony
161.328
Commitment of person found guilty except for insanity of misdemeanor
161.329
Order of discharge
161.332
“Conditional release” defined
161.336
Conditional release by board
161.341
Application for discharge or conditional release
161.346
Hearings on discharge, conditional release, commitment or modification
161.348
Judicial review
161.349
Person committed under ORS 161.315 to 161.351 sentenced to term of incarceration
161.351
Discharge by board
161.355
Definitions
161.360
Qualifying mental disorder affecting fitness to proceed
161.362
Requirements for recommendations, determinations and orders
161.365
Procedure for determining issue of fitness to proceed
161.367
Gaining or regaining fitness
161.370
Determination of fitness to proceed
161.371
Procedures upon commitment of defendant
161.372
Involuntary administration of medication for fitness to proceed
161.373
Records for fitness to proceed examination
161.375
Escape of person placed at hospital or facility
161.385
Psychiatric Security Review Board
161.387
Board to implement policies
161.390
Rules for assignment of persons to state mental hospitals or secure intensive community inpatient facilities
161.392
Certification of psychiatrists and licensed psychologists
161.395
Subpoena power
161.397
Psychiatric Security Review Board Account
161.398
Restorative justice program
161.400
Leave of absence
161.405
“Attempt” described
161.425
Impossibility not a defense
161.430
Renunciation as a defense to attempt
161.435
Solicitation
161.440
Renunciation as defense to solicitation
161.450
“Criminal conspiracy” described
161.455
Conspiratorial relationship
161.460
Renunciation as defense to conspiracy
161.465
Duration of conspiracy
161.475
Defenses to solicitation and conspiracy
161.485
Multiple convictions barred in inchoate crimes
161.505
“Offense” described
161.515
“Crime” described
161.525
“Felony” described
161.535
Classification of felonies
161.545
“Misdemeanor” described
161.555
Classification of misdemeanors
161.566
Misdemeanor treated as violation
161.568
Misdemeanor treated as violation
161.570
Felony treated as misdemeanor
161.585
Classification of certain crimes determined by punishment
161.605
Maximum terms of imprisonment for felonies
161.610
Enhanced penalty for use of firearm during commission of felony
161.615
Maximum terms of imprisonment for misdemeanors
161.620
Sentences imposed upon waiver
161.625
Fines for felonies
161.635
Fines for misdemeanors
161.645
Standards for imposing fines
161.655
Fines for corporations
161.665
Costs
161.675
Time and method of payment of fines, restitution and costs
161.685
Effect of nonpayment of fines, restitution or costs
161.705
Reduction of certain felonies to misdemeanors
161.710
Reduction of certain felony driving offenses after completion of sentence
161.715
Standards for discharge of defendant
161.725
Standards for sentencing of dangerous offenders
161.735
Procedure for determining whether defendant dangerous
161.737
Sentence imposed on dangerous offender as departure from sentencing guidelines
161.740
Sentencing of juvenile offenders
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