161.363 Procedure for determining fitness to proceed
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/or/ors-chapter-161/general-provisions/responsibility/161-363·A research copy — for the controlling text, always check the official state or federal source. Not legal advice.
161.363 Procedure for determining fitness to proceed.
(1)When the defendant’s fitness to proceed is drawn in question, the issue shall be determined by the court. In making the determination, the court may consider:
(a)An examination ordered under ORS 161.365 (1)(c);
(b)Evidence of a prior diagnosis of the defendant made by a certified evaluator or a qualified mental health practitioner;
(c)A prior examination or evaluation of the defendant conducted under ORS 161.309, 161.315, 161.365, 161.370 or 161.371;
(d)Prior judicial determinations that the defendant lacked fitness to proceed;
(e)Prior commitments of the defendant under ORS 427.235 to 427.292 or ORS chapter 426;
(f)The defendant’s conduct as observed by the court;
(g)Prior court records or assessments relating to actions involving the defendant that contain a mental health diagnosis of the defendant;
(h)Relevant information on the defendant’s mental health diagnosis in the possession of the local supervisory authority, if the defendant is under active supervision; and
(i)Any other information the court deems relevant.
(2)(a) The court may hear a motion to find that the defendant is fit to proceed or lacks fitness to proceed from either party. The motion may be made orally or in writing.
(b)If a motion under this subsection is uncontested, the court may make the determination of fitness based on the motion and any supporting evidence. If the motion is contested, the moving party shall file a written motion and supporting evidence with the court, if a written motion has not already been filed.
(3)(a) The court shall hold a hearing on a contested motion as soon as practicable and in accordance with this subsection. If either party requests, or upon the court’s own motion, the court shall hold a status conference to determine when the contested motion hearing will occur and take up any preliminary matters, including whether to order an examination under ORS 161.365 or to allow additional time for either party to seek an examination or evaluation, or to make any other orders as necessary to ensure expedient resolution of the motion.
(b)When determining when to schedule a contested motion hearing for the purpose of determining whether a defendant is fit or unfit to proceed, the court shall consider:
(A)The condition of the defendant and whether allowing more time will result in the deterioration of the defendant’s mental or physical condition;
(B)Whether allowing more time will impact the state of the evidence supporting the motion;
(C)Whether there are any pending evaluations, and the time needed to complete the examinations or evaluations if ordered or approved by the court;
(D)The nature of the charges; and
(E)Any other factor determined to be relevant to the court.
(4)At the hearing:
(a)The moving party has the burden of proving that the defendant is fit to proceed or lacks fitness to proceed, as applicable, by a preponderance of the evidence.
(b)Either party may call and cross-examine witnesses. Unless the court orders otherwise or either party objects, any party or witness may appear at the hearing by simultaneous electronic transmission at the hearing.
(c)ORS 40.450 to 40.475, 40.505, 40.510 and 40.515 do not apply to the following evidence, if offered for the purpose of establishing a prior diagnosis:
(A)A report from an examination or evaluation of the defendant filed with the court under ORS 161.365, 161.370 or 161.371 for the same defendant from the preceding five years; or
(B)Records from a civil commitment proceeding under ORS 427.235 to 427.292 or ORS chapter 426 concerning the defendant from the preceding five years.
(5)Notwithstanding ORS 161.362 and 426.160, the court may enter an order allowing either party to access or use one or more reports from examinations or evaluations of the defendant filed with the court under ORS 161.365, 161.370 or 161.371 in any case concerning the defendant from the preceding five years, or records from a civil commitment proceeding under ORS 427.235 to 427.292 or ORS chapter 426 concerning the defendant from the preceding five years. Records disclosed under this subsection may only be used for the determination of fitness to proceed.
(6)After the hearing described in this subsection, the court may enter a finding that the defendant is fit to proceed or lacks fitness to proceed, or may request additional information to aid in its determination.
(7)If the court determines that the defendant lacks fitness to proceed, and the court did not receive an examination or evaluation from a certified evaluator for the proceeding before the court, there is a presumption that there is a substantial probability that the defendant may gain or regain fitness to proceed in the foreseeable future.
(8)The failure to contest any issue relating to a fitness to proceed determination under this section does not preclude either party from contesting the same issue at a later time. [2025 c.559 §50]